220 Mich. 506 | Mich. | 1922
Defendant was convicted in the Muskegon circuit court of having in his possession prohibited liquor in violation of Act No. 338, Pub. Acts 1917, and reviews the case on exceptions before sentence. The officers, armed with a sea,reh warrant, searched defendant’s room and there found some moonshine whisky. The search warrant was based on the affidavit of Mr. Yarranton, an investigator employed by the county, who had purchased of defendant a pint of liquor at his room. Nearly all of the questions here involved have been considered and settled by de
It is insisted that Mr. Yarranton, the investigator, did not have a search warrant when he went to defendant’s premises and purchased the liquor of him, and that this fact was an invasion of defendant’s constitutional rights and invalidated the subsequent proceedings. But Mr. Yarranton did not visit defendant’s place to search it; he went there as á customer. He did not search for liquor, he bought it. We know of no rule of law which requires that a prospective customer of a bootlegger shall be armed with a search warrant before he opens negotiations for an illicit purchase of prohibited liquors.
As stated, the search warrant was based on the affidavit of Mr. Yarranton. He swears positively in the affidavit to. facts sufficient to confer jurisdiction on the justice to issue the writ. He swears that he purchased the liquor of defendant at the premises searched. In the recent case of People v. Czckay, 218 Mich. 660, we held:
“The affidavit gave the police justice jurisdiction to issue the writ. This jurisdiction was not lost by proof aliunde that the facts therein positively stated were in reality stated upon information and belief. This is settled by numerous decisions of this court (citing numerous cases).”
The¡ affidavit conferred jurisdiction on the justice to issue the search warrant; the warrant was fair on its face, there was no error in refusing to suppress the evidence obtained in its execution.
It is next insisted that defendant was induced by the investigator to make the illegal sale and therefore he should not be convicted. The record discloses that the investigator was a stranger to the defendant, that he went to defendant’s place and purchased the liquor without difficulty, that defendant was not tried for
The court permitted evidence of the sale to Mr. Yarranton and it is insisted that this was evidence of another offense and therefore not admissible. It is a general rule .to which there are' exceptions not here involved and not necessary for consideration, that proof of other offenses may not be received in criminal prosecutions, but we do not think upon this record defendant is in position to.invoke the rule. In justice’s court, before the jury was selected, and after they were sworn, defendant attacked the proceedings under the search warrant; and notwithstanding the affidavit on which it was based and which on its face purported to be on personal knowledge, defendant’s counsel insisted that it was based on information and belief. We quote from his objection:
“I desire to move the court to suppress the evidence said to be obtained in this case by virtue of a pretended search warrant, issued upon the affidavit of one Albert Yarranton, upon the ground that the obtaining of that search warrant upon said affidavit was upon information and belief, and in violation of a constitutional provision of this State, which provides that a warrant providing either for the seizure of a person or the search of premises shall be upon oath or affirmation.” * * *
People v. Czckay, supra, had not been handed down at the time the trial in this case was held. In view of this objection of defendant’s counsel, the prosecuting attorney might well have felt that he was called upon to establish that the affidavit was not based on information and belief but was based upon actual
Defendant’s counsel in his argument to the jury assailed the officers who were witnesses in the case. There is nothing in the record justifying such an attack. While it is within the province of counsel to criticize the testimony of witnesses when there is any reasonable ground for such criticism, an unjustified attack upon officers who have only done their duty is unwarranted and it is not error for the eourt to so state to the jury. We find nothing in the charge of the court on this subject which it was improper for the court to give. The charge brought to the attention of the jury the fact that they were to dispose of the case on the evidence and not upon unwarranted attacks on the public officials.
There being no reversible error on this record, the conviction will be affirmed and the case remanded for judgment.