Defendant was convicted in the Bay county circuit court under an information charging that, on June 26, 1920, at the city of Bay City, in said county, he did then and there unlawfully have in his possession a quantity of intoxicating liquor “to wit 40 quarts of whisky * * * сontrary to the form of the statute in such case made and provided,” etc. The initiative of these proceedings was a search warrant issued by a justice of the peace upon an affidavit swоrn to before him by a police officer praying for the issue of a precept to searсh defendant’s residence, stating as ground therefor that “he has good reason to believe and doеs believe that certain intoxicating liquors are kept and concealed in the residence of Charles May-hew of this city, located at No. 604 East Vermont street in said city and county.” The search warrаnt commanded the officer, “together with the necessary and proper assistance, to enter into the residence of Charles Mayhew, No. 604 East Vermont street, in said city of Bay City, in the county aforesaid, and there diligently search for the said intoxicating liquors,” and to forthwith bring all intoxicating liquors found in such search before the justice, “to be disposed of and dealt with according to law.” An officer went to defendаnt’s residence on the afternoon of June 26, 1920, accompanied by proper assistance аnd equipped with the search warrant. He informed defendant and wife
“The place I searched is a dwelling house; it is not attached to any store, hotel, bоarding house or anything of that sort; it was used as a dwelling house at that time. I saw nothing to indicate that they were conducting any business or anything in the house except using it as a dwelling house.” '
Section 30 of Act No. 53, Pub. Acts 1919, amending section 30 of the prohibition act of 1917 (Act No. 338), provides:
“No. warrant shall be issued to search a private dwelling, occupied as such, unless some part of it is used as a store or shop, hotel or boarding house, or for any other purpose than a private residence, nor unless such private dwеlling is a place of public resort.”
Upon the trial some, if not all, of the liquor so seized was produced and introduced in evidence, against defendant’s objection. The cases were shown to havе contained 20 bottles of liquor bearing labels stating they contained “Corby’s Canadian Whisky,” bottled in bond, certified by the provincial analyst of Ontario “to be a pure whisky of excellent flavor.” This legend found suppоrt in the testimony of the official chemist of Bay City who had analyzed the contents of
Prior to the trial defendant’s counsel presented a written motion to quash the information on the ground that the affidavit and search warrant were void, that sеarch of defendant’s private dwelling is forbidden by statute and the seizure illegal. These objections were renewed at commencement of the trial, objections were interposed to admission of all evidence secured by service of the claimed void search warrant and objections to adverse rulings upon the questions raised were properly reserved for review by motions, requests and exceptions.
The proceedings were doubly void. The affidavit and search warrant were directed to a search and seizure of and in defendant’s residence. The affidavit did not state nor the proofs shоw the exceptional conditions specified in the statute which authorized the search of a рrivate dwelling, or residence, occupied as such. It stated no facts or circumstances within the аffiant’s own knowledge, but only, in the language of section 25 of the prohibition act as originally passed аnd as amended, “that he has good reason to believe and does: believe certain intoxicаting liquors are kept and concealed” in defendant’s residence, refraining from even expressing а belief as to the intent or purpose for which they were kept or concealed. Evidence secured by virtue of a void search warrant issued pursuant to an affidavit made under said section 25 was inаdmissible. In those particulars this case falls squarely under and is controlled by People v. DeLa-Mater,
The conviction and judgment must therefore be set aside, and defendant discharged.