Lehrer v. State, 183 Wis. 339

183 Wis. 339 | Wis. | 1924

Rosenberry, J.

The principal contentions made herein are (1st) that there was no competent evidence in the record showing that the liquor received in evidence was fit for beverage purposes; (2d) that possession of the liquid was obtained by unlawful means and therefore it was not properly before the jury; and (3d) that no search had been instituted and therefore defendant could not be convicted upon the second count of destroying fluids upon premises being searched. It is also contended that the search warrant was unlawfully issued and that evidence as to the liquids seized was improperly received. However, the evidence came in without objection on the part of the defendant and we do not consider it properly reserved for consideration here, although a motion was made to strike at the close of the state’s case.

There was offered and received in evidence by stipulation a letter from a chemist describing the fluid remaining in the bottle as well as that which was taken from the trap, from which it satisfactorily appears that the liquid which the defendant was attempting to destroy was suitable for beverage purposes. The officers had a warrant and were lawfully upon the premises. . While no attempt was made nor opportunity given for a formal statement as to the contents of the warrant, no ceremony oí that character is necessary to the execution of the warrant. 24 Ruling Case Law, 704. A search warrant is executed by making a search of the premises. Both the defendant and his wife acted upon the assumption that the officers were there pursuant to law. The evidence also fully justifies conviction upon the second count. The conduct of the defendant can be accounted for •upon no other assumption than that he knew that the officers of the law were present upon the premises for the purpose of conducting a search. His efforts to' make the search fruitless by destroying the fluids then in his possession, clearly bring him within the terms of the statute, which forbids the destruction of such material while the premises are being searched.

The propositions involved in this case have been so recently and elaborately considered by this court that we deem further discussion unnecessary. See Novotny v. State, 182 Wis. 304, 196 N. W. 232; Pitkunas v. State, ante, p. 90, 197 N. W. 191.

By the Court. — The judgment of • the county court is affirmed.