People v. Kerwin

209 N.W. 157 | Mich. | 1926

Defendant reviews his conviction on a charge of violating the prohibition law on exceptions before sentence. The liquor found on defendant's premises, which was received in evidence, was secured under a search warrant. A motion to suppress was seasonably made. Error is assigned on the denial of this motion. The affidavit on which the search warrant issued was made by the chief of police of the city of Owosso. He deposed that he had good reason to believe that certain intoxicating liquors were concealed on the premises occupied by the defendant in that city (describing them) and that the grounds of such belief were as follows:

"Has seen liquor taken to and on said premises during the past 12 hours. He has observed large numbers of people going to and coming from said premises nearly every night in the past 30 days, among them are people known to handle intoxicating liquor."

This averment was sufficient to confer jurisdiction on the officer to issue the warrant. People v. Warner, 221 Mich. 657;People v. Schregardus, 226 Mich. 279; People v.Schuitema, 231 Mich. 678. Counsel rely on People v. Mitroff,231 Mich. 661. There was no averment in the affidavit in that case as to when the observations on which the charge rested were made, and the warrant was held to be invalid on the authority of People v. Musk, 231 Mich. 187.

An examination was had. The motion to dismiss was based upon the facts revealed therein as well as upon the insufficiency of the averments in the affidavit. On the examination defendant's counsel sought to show that the facts stated by the officer in his affidavit were not within his personal knowledge. This question was presented in People v. Czckay, 218 Mich. 660, and it was there said by Chief Justice FELLOWS:

"The affidavit gave the police judge 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 them).

This holding has been followed in People v. Christiansen,220 Mich. 506; People v. Musczynski, 220 Mich. 536; People v.Knopka, 220 Mich. 540; People v. Flaczinski, 223 Mich. 650;People v. Ranes, 230 Mich. 384. The motion to suppress was properly denied.

It appears, however, that on the trial the legality of the search was again gone into. This should not have been permitted. When the motion to suppress was denied, the prosecution was entitled to offer the liquor in evidence, and the jury were in no way concerned with the manner in which it had been secured. People v. Marxhausen, 204 Mich. 559 (3 A.L.R. 1505); People v. Miller, 217 Mich. 635; People v.Vulje, 223 Mich. 656; People v. Coffey, 225 Mich. 532; People v. Boyd, 228 Mich. 57.

Error is assigned upon certain portions of the charge. We have read it with care, and are satisfied that defendant's rights were fully protected in the instructions as given.

The exceptions are overruled, and the trial court directed to proceed to sentence.

BIRD, C.J., and SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.