68 Colo. 174 | Colo. | 1920
delivered the opinion of the court.
Plaintiffs in error were each sentenced for contempt by the County Court of Arapahoe county for bringing, while criminal actions against them were there pending, a replevin suit in that court to recover from the relator the possession of two shipments of liquor which he, as sheriff, had seized in the depot without an affidavit or warrant.
April 26, 1917, separate criminal informations were filed in the County Court at Littleton against John Kilker and J. J. West, by the District Attorney upon information received from relator, E. F. Burden, as sheriff of Arapahoe county. The first count charged them with unlawfully importing liquor for sale or gift, and the second with
For a better understanding of the case it may be well to state that the acts charged in the criminal cases, involving the same shipments of liquor, the same defendants, and the same transactions, were before us in Kilker and West v. The People, 66 Colo. 75, 179 Pac. 145, from which it appears that defendants, who were gardeners living near Englewood, each ordered on April 20, 1917, 15 cases of 24 pints each of whiskey shipped to them by freight from Cheyenne to Englewood. The shipments arrived in Denvver over the C. & S. R. R. on the 21st, were transferred to the Santa Fe, and on the 23rd arrived at their destination, where they were held in the freight depot awaiting delivery to the consignees. The next day the station agent notified them, and on the 25th they went to the station with a wagon to get the shipments. At the request of the agent they each signed the consignee’s affidavit required by sec. 8 of the 1915 act. West paid the freight charges on his shipment, Kilker made arrangements with the agent to> come back for his afterwards, and then they went to the freight room to get West’s shipment and take it home. He (West) backed the wagon up to the door while. Kilker went inside intending to carry it out. In hunting for West’s name on the cases, Kilker reached over the pile, loosened up a case and pulled it toward him about half way off the pile, when some remark was made about how they would load it. At this point, but before any of the cases were loaded or removed from the pile, the officer, without a
Upon the trial of that part of the criminal case based upon sec. 1 of the act of 1915, the jury acquitted defendants upon the charge of unlawfully importing, and the District Attorney dismissed the second count for unlawfully keeping the liquor, and the jury convicted them upon the charge of receiving more than two quarts at a time based upon the law of 1917. We reversed this conviction (see 179 Pac. 147) upon the ground that the 1915 act as amended in 1917, taken as a whole, was an importing statute, the restriction of which against receiving more than two quarts at a time did not relate to liquors already imported, and at the station before the act of 1917 went into effect.
No complaint of any kind was ever filed against the liquor, and no order of court entered that it be held for any purpose, and no affidavit was made, and no search warrant issued under sections 11 and 12 and no action or special proceeding ever commenced other than the criminal complaint against the defendants. The officer claimed to act under, and based his authority upon sec. 13, Liquor Laws of 1915.
Defendant West’s answer in the contempt case, after denying and admitting certain allegations of the complaint, alleged in substance that his home and private residence was on a garden tract near the town of Englewood in Arapahoe county; that about April 21, 1917, to supply him
A demurrer to the answer was sustained in each case and they elected to stand by the answer, whereupon judgment was entered, against them on the pleadings without any evidence whatsoever, and they bring the case here for review upon error.
Sustaining the demurrer and entering judgment on the pleadings without evidence admitted the allegations of the answer which for the purpose of review are taken as confessed. Defendant, for his own personal use in his home, ordered, under the liquor, statute of 1915, a consignment of liquor from Cheyenne. The sheriff seized the shipment in the statioij without an affidavit and warrant while defendant was there with his wagon intending to get it and take it to his home, arrested defendant, and has ever since kept the shipment. The next day the District Attorney filed a criminal complaint in the County Court against defendant at the suggestion of relator, before the trial of which defendant brought a replevin suit to obtain possession of the liquor, for which he was adjudged to be in contempt of court and sentenced to jail. The only question in review is whether it was contempt of court to bring the replevin suit while the criminal action was pending.
Whatever power and authority the officer had in the case is found in sec. 13, Intoxicating Liquors Law of 1915. It provides in substance: That any sheriff, having personal knowledge or reasonable information that intoxicating liquors are kept in violation of law in any place, shall search such suspected place without a warrant, and without any affidavit being filed, and if the officer finds upon the premises intoxicating liquors, he shall seize the same, and arrest any person or persons in charge of such place, or aiding in any manner in carrying on the business conducted in such place; and shall take the person with the liquors so seized forthwith before a justice or a judge, and without delay make and file a complaint for such violation of the law as the evidence justifies.
If the sheriff exceeded his authority or jurisdiction under this section, that is, had no power to seize the liquor, defendant had a right to replevin the shipment, and the county court had no jurisdiction to punish him for contempt in doing what he had a right to do. Under the act of 1915 it was lawful for defendant to import and keep the
Reversed and Remanded.
Mr. Justice Scott and Mr. Justice Denison concur.