Novotny v. State,

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Notebook

| Wis. | Dec 11, 1923

Rosenberry, J.

On the appeal of the defendant Thoma the sole, question is, Did Thoma destroy mash while the premises were being searched by the police officers? As is set out in the statement of facts, the destruction of the fluids in question took place in the absence of the police officer. No search was begun. No service of the search warrant had been made. No one in fact knew that'the police officer who came to the door of the Frank Kinderman home had a search warrant. Under the facts disclosed by the testimony of the police officers, they might or. might not have returned to the premises for a search. It appears, therefore, that the defendant Thoma did not destroy any fluids upon the premises in question while it was being searched. His conduct in no way answers the calls of the statute, and while it may be reprehensible it cannot be punished under the statute in question.

The defendant Novotny was convicted of transporting intoxicating liquor under sub. (3), sec. 1543, Stats., which provides:

“After this act becomes operative, the manufacture, sale or transportation of intoxicating liquors, as herein defined, within, the importation thereof into, or the exportation thereof from the state of Wisconsin, except as may be herein or hereafter provided, is hereby prohibited.”

It is undisputed that the defendant Novotny assisted in carrying the keg of moonshine, which was intoxicating liquor, from the cellar of the Kinderman home across the driveway to the Hoffman place next door and leaving it there in the woodshed. The premises consisted of adjoining lots with a driveway between. Do these acts constitute “transportation” within the meaning of this section ? That this act would not in modern popular thought be conceived of as transportation may be admitted. The question is, *308however, What did the legislature mean by the use of this word in sub. (3)? Etymologically, the meaning of the word exactly describes the act performed by the defendant Novotny. Talcing into consideration the purpose of the legislature in the enactment of this statute, we have no doubt that it includes within its meaning an act such as that performed by the defendant Novotny. The act “shall be liberally construed to the end that the use of intoxicating liquors as a beverage be prevented.” ' Sub. (33). Novotny carried the intoxicating liquor from the premises of one person to and left it upon the premises of another. If this is not transportation, could it be said that it would be transportation to take it upon the premises of a second, third, fourth, or hundredth neighbor? It is argued on behalf of the defendant Novotny that he merely moved it about and handled it and did not transport it within the meaning of the statute. Without attempting to define the meaning of the word, we are of the opinion that the word “transportation” as used in sub. (3) includes an act whereby a person takes from the premises of one intoxicating liquor and carries it upon and leaves it upon the premises of another, whether or not it is for purposes of sale. Transportation for any purpose is forbidden by the section.

Reference is made to the following cases, which bear upon the question: Cunard S. S. Co. Ltd. v. Mellon, 284 F. 890" court="S.D.N.Y." date_filed="1922-10-23" href="https://app.midpage.ai/document/cunard-s-s-co-v-mellon-8827966?utm_source=webapp" opinion_id="8827966">284 Fed. 890; Sager v. Comm. 134 Va. 732" court="Va." date_filed="1922-11-16" href="https://app.midpage.ai/document/sager-v-commonwealth-6815019?utm_source=webapp" opinion_id="6815019">134 Va. 732, 114 S. E. 590; McNeil v. State, 93 Tex. Crim. Rep. 259, 247 S.W. 536" court="Tex. Crim. App." date_filed="1922-12-06" href="https://app.midpage.ai/document/mcneil-v-state-3926788?utm_source=webapp" opinion_id="3926788">247 S. W. 536; Miller v. Comm. 135 Va. 597" court="Va." date_filed="1923-01-18" href="https://app.midpage.ai/document/miller-v-commonwealth-6815101?utm_source=webapp" opinion_id="6815101">135 Va. 597, 115 S.E. 512" court="Va." date_filed="1923-01-18" href="https://app.midpage.ai/document/hunt-v-commonwealth-6815088?utm_source=webapp" opinion_id="6815088">115 S. E. 512; Steinwach v. Comm. 197 Ky. 262, 246 S. W. 795.

By the Court. — Judgment as to the defendant Tkoma, is reversed, with directions to discharge the defendant. Judgment against the defendant Novotny is affirmed.