96 Wis. 258 | Wis. | 1897
1. The ordinance brought in question by this proceeding was framed for the discovery and suppression of gambling and gambling houses in the city of Milwaukee. It subjects the keeper of the gambling house, room, or place, and all persons who shall be there found, whether playing, gaming, or otherwise, to the penalties prescribed. The keeping of a common gambling house, as well as betting, wagering money or any thing of value, upon any game of cards, dice, or other device, are misdemeanors by the general statute. R. S. secs. 4529, 4530. And by secs. 4539 and 4840 search warrants for the detection and discovery of gambling and gaming devices, etc., are authorized to be issued, substantially under similar circumstances as provided by the ordinance. The proceeding against the petitioner, Newman, for keeping a gaming house was ywasi-criminal, although prosecuted in the name of' the city. Boscobel v. Bugbee, 41 Wis. 59; Platteville v. Bell, 43 Wis. 488. In Platteville v. McKernan, 54 Wis. 487, it was held that where a city or village ordinance prohibits that which is a
2. It is objected that the ordinance violates the provision •of the constitution (art. I, sec. 11) which declares that “ the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article IY of the constitution of the United States contains substantially the same provision. “ The things here forbidden are two — search and seizure. And not all searches nor all seizures are forbidden, •but only those that are unreasonable. Beasonable searches, therefore, may be allowed; and if the thing sought be found, it may be seized.” Per Miller, J., in Boyd v. U. S. 116 U. S. 641. The object of the constitutional provision was to abolish searches by general warrants, which authorized .searches in any place or for any thing. Searches founded •on affidavits which describe the thing to be searched for, the person and place to be searched, are not unreasonable, and are still permitted. In the same case, Mr. Justice Bead-ley said that “ laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within the category of unreasonable
Under the warrant issued pursuant to the ordinance under consideration, the particular house, building, room, or place to be searched is specified; and the persons implicated are described, in general, as persons who resort thereto for gambling, contrary to the provisions of the ordinance, and who are found present when play is in progress, whether engaged in play or not. ' The officer is “ to arrest all persons found playing for money, or other thing of value, and all persons who shall there be found, whether playing, gaming or otherwise, and also the keeper thereof.” For the arrest
3. It was contended that the provision of the ordinance authorizing the arrest, by the officer executing the search warrant, in addition to those found playing for money, etc., •of “all persons who shall there be found, whether playing, gaming or otherwise,” was void. "While this question is not strictly material to the case before us, in respect to the keeper of the house, we think it proper to call attention to the fact that similar provisions in the Massachusetts statutes have been upheld in Comm. v. Smith, 166 Mass. 370, where it was said: “ It is unnecessary, under the statute, to allege the defendant’s knowledge of the presence of the implements or the character of the place. The statute means that people enter such places at their peril. . , . "When, according to common experience, a certain fact generally is accompanied by knowledge of the further elements necessary to
4. It would not, we think, be a defect fatal to the ordinance, if it should be held that the common council had no authority to enact the rule of evidence contained in sec. 5. This provision is an independent one, and, if held invalid, the offense could well be prosecuted, and a conviction be had, under the common-law rules of evidence. This question relates only to the trial, and we give no further opinion in respect to it.
5. The ordinance, as a police measure, provides for a single proceeding, commencing with the issuing of the search warrant, and upon the proper execution of which the keeper and inmates found in the gambling house, building, room, or place may be arrested, and, upon sufficient return made, complaints may be filed against them, which “ shall be considered a part of the action or proceeding,” and adjournments of which may be had, and upon which a trial and conviction may take place; the defendants in the meantime
6. The return of the officer upon the warrant is vague and indefinite. It does not appear from it that Newman, the petitioner, arrested as the keeper of the gaming house searched, or those arrested as inmates, were either of them found or arrested in the building, room, or place authorized by the warrant to be searched. In a proceeding of such a drastic and summary character nothing should be left to inference, but all material facts should be stated in the return with clearness and certainty, so as to justify and support the subsequent proceedings required to be taken upon the return of the warrant. This leads us to the consideration of the question whether, when the writ of habeas, corptis was sued out, the petitioner was held in custody by “ due process of law.” His name is not mentioned in the search warrant, or in the affidavit upon which it issued. In brief, he is not charged, so far as the sheriff’s return to the writ of habeas corpus shows, with any offense, or held by any process directed against him personally. Erom his petition it appears that he was arrested under the search warrant, and brought before the police court, November 9, 1895, for
Upon the grounds and for the reasons stated, we must hold that the judgment of the circuit court affirming the ■order of the- court commissioner discharging the petitioner was correct and must be affirmed.
By the Court.— Judgment is ordered accordingly.