Rose v. StateRose v. State
- Reporters:
- , ,
- Before:
- Monks
This was a proceeding in the nature of a libel, brought -under sections’ two to fourteen of an act approved February 13, 1907 (Acts. 1907, p. 27, §8338 et seq. Burns 1908), to procure the seizure and destruction of certain intoxicating liquors. Such proceedings were had that final judgment was rendered, ordering that the boxes, barrels, demijohns, jugs and bottles and the intoxicating liquors contained therein, taken under the search-warrant, be destroyed.
From this judgment appellants appealed and assigned errors, calling in question the action of the court in overruling the motion to quash the affidavit on which the search-warrant was issued, the motion to quash said search-warrant and the sheriff’s return thereon, the separate motion of each appellant for a new trial, and the separate motion of each appellant in arrest of judgment.
It is insisted that sections two to fourteen of said act of 1907 are unconstitutional because in violation of article 4, §19, of the Constitution of this State, which provides that “every act‘shall embrace but one subject and matters prop*665erly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall- not be expressed in the title, such act shall be void only as .to so much thereof as shall not be expressed in the title.” The only ground stated for this contention is “that the provisions of said act make certain facts, if shown, prima facie evidence of some of the facts necessary to be established in a proceeding under said sections. ” •
*667
*668
In State v. Thompson, supra, the place was described as “Clarke Thompson’s saloon building, in Strawberry Point, owned and kept by‘said Clarke Thompson.” Held, sufficient.
In Hornig v. Bailey, supra, the description held sufficient was: “In said Danbury, near the corner of Elm street, in the borough of Danbury, within said town of Danbury, in a wooden building occupied by jean Hornig, of said Dan-bury, consisting of a one-story building, and a garden thereto attached and occupied as a saloon and place of public resort j also in another wooden building situated betw^ep Dan-*669bury News office and said one-story building described above, and used by said Jean Hornig as a dwelling-house; all of said buildings being within the town and borough of Dan-bury, and which said liquors are owned and kept at said place.”
In State v. Twenty-five Packages of Liquor, supra, the description was: ” The American hotel and the barn, sheds and other outbuildings adjacent thereto, in Burlington and forming a part of the premises of said hotel.” The court held that “this is the designation of a single establishment, and is sufficiently specific,” and “it is a particular description. ’ ’
In Commonwealth v. Certain Intoxicating Liquors, supra, the description called for “a hotel and barn in the town of Hudson, occupied by Zephrin Lucia, known as the Valley House and barn in the rear thereof, situated’ on the north side of Main street in Hudson Centre, next ea°st of the bakery, which was occupied in part by George- W. Davis. ’ ’ The court- said: “While its language was involved, and not perspicuous, we think it had no such ambiguity as to .prevent identification of the buildings and place referred to. Commonwealth v. Intoxicating Liquors [1867], 97 Mass. 63; Commonwealth v. Intoxicating Liquors [1871], 107 Mass. 386; Commonwealth v. Certain Intoxicating Liquors [1872], 109 Mass. 371-372; Commonwealth v. Certain Intoxicating Liquors [1873], 113 Mass. 208; Commonwealth v. Certain Intoxicating Liquors [1877], 122 Mass. 36.”
In Commonwealth v. Intoxicating Liquors (1889), 150 Mass. 164, 22 N. E. 628, it was held that “in a certain tenement situated on Essex street, and numbered 136 on said street, in Lawrence in said county and occupied by said Lib-bey as a common resort kept therein,” was a sufficient description of the place to be searched.
It is evident’ from the authorities cited that the description in the affidavit of the place to be searched was sufficient to comply with the requirements of article 1, §11, of *670the Constitution of this State. Said affidavit was otherwise sufficient under the rule declared in Regadanz v. State, supra, and the cases there cited. The court did not err therefore in holding that the same was sufficient nor in overruling the motions in arrest of judgment. ’ The description in the search warrant of the place to he searched was the same as in the affidavit, and was clearly sufficient, and the court did not err in overruling the motion to quash said writ aud the return of the sheriff thereon.
It is next urged that the court erred in overruling appellant’s separate motions for a new trial. The grounds assigned for a new trial in each of said motions depend for their determination upon the evidence, which is not in the record. It appears from the record that at the November term, 1907, of -said court said cause was submitted to the court for trial, and that, after hearing the evidence and argument of the counsel, the court found for the State and *671against appellants. Afterwards on the nineteenth day of the February term, 1908, of said court, the same being March 2, 1908, the court overruled appellants’ separate motions for a new trial, to which ruling they each separately excepted. No time was then, or on said day, given by the court within which to file a bill or bills of exceptions. Several days afterward, and before the adjournment of said February term, ninety days were given appellants’ within which to file bills of exceptions. The bill of exceptions in this case was filed in vacation after the expiration of said February term.
*673
Having determined all questions properly presented in. appellants’ statement of points, and finding no error, the judgment is affirmed.