203 N.W. 77 | Mich. | 1925
Defendant was convicted of a violation of the prohibition law and brings his case here *386 on exceptions before sentence. The evidence was obtained on a search of defendant's home based on a search warrant previously issued. The testimony taken before the examining magistrate is returned together with that taken on the trial and all papers preliminary to the search and upon which the warrant was issued are a part of the record. By motion to suppress the evidence made both before the magistrate and in the circuit, motion to quash the information, objection to testimony, motion in arrest of judgment and motion for a new trial, defendant's counsel had carefully preserved the rights of their client and here insist that the search warrant was invalidly issued and that the search was unjustified in the law.
The description of the premises in the affidavit is as follows:
* * * "a tar paper shack and garage located on the following described parcel of land, viz.: going out past old Duplex truck plant on Lansing-Eaton Rapids about one-half mile to a stucco store on corner, beyond store about one-half block to Holmes road, thence east about one-third to one-half mile, to said shack which is on the north side of said road and with garage attached to east side, situated in the township of Lansing, said county and State, and occupied by said Jack Ranes, et al."
The justice acquired or failed to acquire jurisdiction by this affidavit (People v. Czckay,
The writ commanded the officer to search the premises described "in affidavit hereto attached." The sheriff was unable to remember upon the examination whether he had the affidavit with him at the time of the search although he was sure he had the warrant. His failure to remember one way or the other was not sufficient to dispute the certificate of the justice contained in the writ that it was attached.
In the affidavit it was alleged, among other things, that the dwelling house of defendant was a place where intoxicating liquor was sold and the facts supporting such allegation were stated as follows:
"Deponent went to said shack on the evening of said day and therein asked the said Jack Ranes to bring him one gallon of whisky and he said he would. Deponent paid him $10.00 therefor. Deponent says about two weeks ago he went to said shack and paid the same men the sum of $35.00 to bring him some whisky, when deponent was there on evening of August 2, the said man was furnished a drink of whisky from a jug."
It is insisted by defendant's counsel that this allegation is insufficient under the holding in People v. Hertz,
It is also insisted that the venue was not proven. We think the testimony of the witness Cook, who says: "I was present on the occasion of the raid at the home of Charles Ranes in Lansing township," sufficiently meets this objection.People v. Rimkus,
The exceptions will be overruled and the case remanded for sentence.
McDONALD, C.J., and CLARK, BIRD, SHARPE, MOORE, STEERE, and WIEST, JJ., concurred.