Commonwealth v. Intoxicating Liquors

203 Mass. 585 | Mass. | 1909

Hammond, J.

This case is before us upon the claimant’s exceptions taken at the trial before the jury, and the only question raised is that of jurisdiction. The point taken by the claimant is stated in his^ brief in the following form: “ It is the contention of the claimant that the officer who by virtue of his search warrant seized and took the liquors in controversy and against which liquors this complaint is directed, did not act in strict compliance with his authority but voluntarily transcended the limits of said authority, in that he seized a larger quantity of whiskey than authorized by his warrant, making him a trespasser ah initia, and said seizure illegal and void, and this being so the court has no jurisdiction to forfeit any of the liquors seized and taken by virtue of said process.”

It is to be noted that this is not an action against an officer. What may be the law as to his personal responsibility it is unnecessary to consider. Nor is it a case where the officer has failed to observe the law as to the seizure of the articles described in the warrant; and hence cases like Purrington v. Loving, 7 Mass. 388, Smith v. Gates, 21 Pick. 55, Russell v. Hanscomb, 15 Gray, 166, and Blanchard v. Dow, 32 Maine, 557, cited with other similar cases in the claimant’s brief, are not pertinent.

We are dealing simply with the question whether, — the officer having taken more whiskey than the amount described in the warrant, — the seizure was for that reason invalid as to all the liquors including the ale, beer and wine specified in the return. The law upon this question is well stated in the note to Six Carpenters’ case, 1 Smith Lead Cas. (ed. 1903) p. 137, in the following language: “ But, if there be a seizure of personal chattels, some of which are by law seizable, and some not, or some of which are subsequently abused, and the rest not, the seizure is or becomes illegal, only as to the chattels, which it was unlawful to seize, or which were subsequently abused, and the seizure of the rest continues legal.” This principle was stated and followed by this court in Commonwealth v. Intoxicating Liquors, 113 Mass. 13, 20. The claimant attempts to distinguish that case from the present one by saying that in that case the fact of the seizure of the bay water did not appear in the officer’s return upon the warrant, while here the illegal seizure of the extra twelve gallons does appear upon the return. But that is a distinction upon a matter immaterial to the question before us. It follows that the court had jurisdiction at least over the ale, beer and wine described in the warrant and taken by the officer, and that in refusing to dismiss the complaint and to instruct the jury as requested by the claimant there was no error.

Exceptions overruled.