Davis v. State, 187 Wis. 115

187 Wis. 115 | Wis. | 1925

Owen, J.

The search warrant was issued upon a complaint made upon information and belief. It was issued prior to the decision of this court in State v. Baltes, 183 Wis. 545, 198 N. W. 282, where this court held that a search warrant so issued was void. It is perfectly apparent that in the trial of this case the State endeavored to avoid the consequences of that decision by an attempt to show that the search was not made pursuant to the search warrant and that the officers entered the premises because it was a disorderly house, as they had a right to do under Hawkins v. Lutton, 95 Wis. 492, 70 N. W. 483. We have carefully considered the evidence in this case and we regard the attitude of the State as nothing more nor less than a flimsy and transparent attempt to avoid the consequences of the decision of this court in State v. Baltes, 183 Wis. 545, 198 N. W. 282, where this court held that a search warrant so issued was void.

It will be noted that the search warrant was issued at a time when it was not uncommon for search warrants to issue upon a complaint made upon information and belief, that the raid was made the very day of its issue, and that the return of the officer showed that they had searched the premises of defendant described in. the search warrant, had found therein a bottle of moonshine whisky, and pursuant to said search warrant had placed the defendant under arrest. There is much authority for the proposition that this return is conclusive upon the State that the raid was made pursuant to and by vii-tue of this search warrant. 2 Ency. of Ev. 974, and many cases there cited.

In Toepfer v. Lampert, 102 Wis. 465, 469, 78 N. W. 779, concerning the evidentiary force of the return of an officer to process, the court said:

“The rule is frequently broadly laid down that the return of a sheriff upon process in his hands as to his official acts properly done thereunder is conclusive upon the parties to the action and their privies, and cannot be collaterally impeached, but must be set aside, if at all, in some direct proceeding brought for the purpose. Murfree, Sheriffs (2d ed.) § 868, and cases cited. The rule is referred to with approval in Knowlton v. Ray, 4 Wis. 288, and recognized as correct in Carr v. Commercial Bank, 16 Wis. 50. But an exception to the rule has been made in the cases of Rape v. Heaton, 9 Wis. 328, and Pollard v. Wegener, 13 Wis. 569, where it is substantially decided that the return may be contradicted when the question of jurisdiction of the party arises, and it may be shown that jurisdiction was never in.fact obtained, notwithstanding recitals to that effect in the record.”

And even where the question of jurisdiction arises, it is the rule of this court that an officer’s return showing service of a summons can be overcome only by the most clear and satisfactory evidence to the contrary. Arapahoe State Bank v. Houser, 162 Wis. 80, 155 N. W. 906. Although we do. not find that the rule that the return of an officer to the process of a court is conclusive has ever been applied in this state, there is much authority to support it, and its correctness has been specifically recognized by this court in the cases cited. It is unnecessary to apply it here because the proof offered by the State relied upon to impeach the return to the search warrant falls far short' of that clear and satisfactory character required to impeach an officer’s return even where questions of jurisdiction are involved.

We think it clear that the bottle of moonshine came into possession of the State by virtue of an unlawful search and seizure, and the court should have excluded it from evidence. While the evidence of Brown concerning his purchase of moonshine, together with that of another witness who testified that she ordered wine and was served with a drink that tasted and looked like wine, might have been sufficient to sustain a verdict of guilty, it cannot be said that the reception of the bottle of moonshine whisky in evidence did not constitute prejudicial error. The conviction of the defendant upon the grounds relating to the possession and sale of intoxicating liquor, therefore, must be reversed.

The defendant also complains that he was erroneously convicted upon the counts charging unlawful possession and sale of non-intoxicating liquor. There was a prior trial of this case upon which the defendant testified that he sold at his place of business pop and ginger ale manufactured by certain concerns in Oshkosh. His testimony in this respect was read in evidence upon this trial. A chemist testified in behalf of the State that he was familiar not only with the product manufactured by these concerns but with their method of manufacture, and that their product not only contained alcohol but that the ginger ale and pop could not be manufactured in the manner followed by those concerns without producing an alcoholic content in the product. We think this evidence was sufficient to justify a finding that the pop and ginger ale which the defendant admitted he sold contained an alcoholic content. Sec. 165.01, Stats., provides that “The words ‘non-intoxicating liquor’ include all liquors, liquids or compounds, whether medicated, proprietary, patented, or not and by whatever name called, fit for use for beverage purposes, containing alcohol in any degree, not defined to be ‘intoxicating liquors.’ ”

In Alby v. Smith, 178 Wis. 138, 189 N. W. 493, we declined to pass upon the question whether ginger ale or other similar drinks constitute non-intoxicating liquor within the meaning of this statute. We there said: “It is difficult to exclude them from the express terms of the statute. On the other hand, it is difficult to conceive that the legislature had them in mind in enacting this legislation, the primary purpose of which was to prohibit the traffic in intoxicating liquors.” Not only the evidence in this case but the evidence before us in Alby v. Smith showed that such drinks do have an alcoholic content and that they come within the literal provisions of the statute. The decision in Alby v. Smith was rendered in 1922. Since that time there have been two sessions of the legislature. That decision was notice to the legislature that it was at least a doubtful question whether such drinks fall within the provisions of the statute. The failure of the legislature to make any change in the statute indicates its satisfaction with the provision as it exists. It therefore must be given its literal application, and we must hold that any drink, no matter how harmless it may be generally regarded, containing any degree of alcohol falls within the statutory definition of non-intoxicating liquor. The sale of such liquor without a license constitutes an offense, and defendant’s conviction upon that count of the information must be affirmed.

By the Court. — Judgment reversed as to the first and fifth counts of the information, and the cause is remanded for a new trial as to such counts. As to the third and fourth counts the judgment is affirmed.