Millin v. State

| Wis. | Oct 12, 1926

Stevens, J.

Plaintiff in error presents two questions:

1. That the warrant under which.the officers were making, the search when the still, mash, and liquor were found gave the officers no right to make the search.

2. That the conviction ought not. to ■ stand because it was based on the uncorroborated testimony of an accomplice.

1. The search warrant was valid. It was not issued until a witness had been sworn and his testimony taken by the justice. The fact that the witness testified to the essential facts upon 'informátion and belief does not invalidate the search warrant. State v. Baltes, 183 Wis. 545" court="Wis." date_filed="1924-04-08" href="https://app.midpage.ai/document/state-v-baltes-8194371?utm_source=webapp" opinion_id="8194371">183 Wis. 545, 550, 198 N. W. 282. The warrant was for a search of the premises of a Mr. Hesselman, on whose premises the still, mash, and liquor were found. In any event it does not lie within the mouth of Millin, the plaintiff in error, to claim that the search of the Hesselman premises was not lawful. Hansen v. State, 188 Wis. 266" court="Wis." date_filed="1925-11-17" href="https://app.midpage.ai/document/hansen-v-state-8194847?utm_source=webapp" opinion_id="8194847">188 Wis. 266, 267, 205 N. W. 813; Goldberg v. U. S. 297 F. 98" court="5th Cir." date_filed="1924-01-22" href="https://app.midpage.ai/document/goldberg-v-united-states-8835336?utm_source=webapp" opinion_id="8835336">297 Fed. 98, 101; MacDaniel v. U. S. 294 F. 769" court="6th Cir." date_filed="1924-01-08" href="https://app.midpage.ai/document/macdaniel-v-united-states-8833537?utm_source=webapp" opinion_id="8833537">294 Fed. 769, 771.

2. The testimony upon which the verdict of guilty was based was that of a boy seventeen years of age who was operating the still when the officers found it and who testified that Millin owned the still, mash, and liquor and that he was operating the still for Millin. “ ‘When there is no evidence agáinst the accused, except the uncorroborated testimony of an accomplice, it is discretionary with the trial court whether to direct an acquittal or not. ... A judgment will not be reversed for refusing to set aside a verdict founded upon such testimony alone.’ ” Murphy v. State, 124 Wis. 635, 656, 102 N. W. 1087.

The trial judge, who had the advantage of seeing the witnesses, has exercised his discretion and refused to set aside the verdict of the jury. This court is satisfied that the trial court did not abuse its discretion in so doing. It seems much more probable that Millin, a man of mature years and a bartender, would be engaged in the manufacture of illicit liquor than that the boy of seventeen found operating the still should have undertaken this illegal business. The fact that the officers had urged the boy to implicate Millin and told him that he would stand a better show of getting off if he did so, does not establish the fact that the trial court abused its discretion in refusing to discharge Millin. At the time of trial the boy had received his sentence and could no longer have been moved to testify by the hope that his testimony would secure him a lighter sentence.

By the Cotirt. — Judgment affirmed.