204 N.W. 731 | Mich. | 1925
Lead Opinion
Defendant reviews his conviction, on a charge of unlawfully having intoxicating liquors in his possession, on exceptions before sentence.
1. It is urged that the search warrant, under which certain evidence was secured, was issued without authority of law. The warrant described the premises as —
"the two two-story houses, one brown, the other green, on the premises situate, known and numbered as No. 704 Elizabeth street, in the city of Jackson."
It was held in People v. Musk,
The grounds for the belief of the affiant were thus stated:
"For about a week preceding the date of this affidavit, I have watched the above places. Many men have entered the place sober, only to later come out drunk. I have seen men go into the place to come out later and go down to the railroad tracks near there where they produce bottles of moonshine whisky and *561 drink from them. I have seen this happen from places less than 40 feet distant from them. This latter arrangement I have seen occur at least three or four times in the past week."
Under the warrant, the officer was vested with authority to search the premises described therein. The description was definite. He was not required to exercise any discretion in determining where the search should be made. The buildings apparently were occupied as one place of abode, and were used together as a place of public resort. In our opinion the warrant was properly issued, and authorized the search made.People v. Bawiec,
2. The grounds for the belief of the affiant above quoted were clearly sufficient. People v. Starkweather,
3. One of the officers who executed the search warrant testified that when he entered the kitchen the defendant —
"had a tea pot or coffee pot in his hand from which there was moonshine whisky dropping onto the floor."
The trial court read to the jury section 28 of Act No. 338, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 7079 [28]), and instructed them that if the defendant was pouring out a liquid when the officer entered for the purpose of preventing its seizure, they might find his action to be prima facie evidence of the intoxicating nature of the fluid. The charge in this respect was fully justified under the statute.
The record discloses no prejudicial error. The trial court will proceed to sentence. *562
McDONALD, C.J., and CLARK, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred with SHARPE, J.
Dissenting Opinion
The opinion of Mr. Justice SHARPE in this case, in my judgment, clearly infringes the rule that no discretion shall be vested in the officer who serves the search warrant so far as place to be searched is concerned. The rule is stated in Ruling Case Law as follows:
"The constitutional requirement is a description which particularly points to a definitely ascertainable place, and so as to exclude all others. The writ should not leave the place to be searched to the discretion of the officer; and the modern authorities are unanimous in holding that a search warrant directing an officer to search places generally is clearly illegal." 24 R. C. L. p. 713.
See, also, Const. Mich. Art. 2, § 10; Larthet v. Forgay, 2 La. Ann. 524 (46 Am. Dec. 554); Smith v. McDuffee,
The officer was directed to search "two houses two-story, one brown, the other green, located at 704 Elizabeth street, one place apparently unnumbered, of the said John Doe and Richard Roe."
If the officer has no discretion, will he search the brown house or the green house? When the officer reached the premises and stood on the sidewalk in front of them, he could not tell which to search by looking at his warrant. The only thing he could do was to exercise his discretion, which he did do, and search one of them, but he does not tell us in the return on his warrant which one he searched. This was not a case where an officer was directed to search a certain house and where he searched an outdoor building that was within the curtilage. These houses were distinct and the affidavit for the search warrant shows they were inhabited by different persons. The *563 affidavit shows: "Which said premises are occupied by oneJohn Doe and Richard Roe as private residences and also used asplaces of public resort," etc. The warrant also shows the houses were distinct. This was clearly a violation of the foregoing rule and an invasion of defendant's constitutional rights. For this reason the proceedings should be set aside and defendant discharged.
