207 P. 634 | Mont. | 1922
Lead Opinion
delivered the opinion of the court.
On the night of April 30, 1921, the sheriff of Powell county met the defendant Mullen in an alley in the city of Deer Lodge, carrying a handbag from which protruded the top of a demijohn, the demijohn containing two gallons of intoxicating liquor. The sheriff without a warrant seized the handbag and the demijohn and its contents, and on May 2 filed a complaint charging the transportation of intoxicating liquor in violation
The defendant was not arrested or tried, and it is contended that the district court erred in entering judgment forfeiting the property before the defendant was convicted of violating the law.
Chapter 143, Laws of 1917, is known familiarly as the Prohibition Enforcement Act. Several sections of that Act were repealed and other changes in the law effected by Chapter 9, Laws of the Extraordinary Session of 1921. Speaking in general terms, Chapter 143 provides two distinct methods of procedure, one applicable to cases in which the enforcement officer has probable cause for believing that the liquor laws are being violated, though not in his presence, and the other applicable to cases in which the law is being violated in the presence of the officer. Section 7 provides that in instances of the first class a complaint shall be made, a search-warrant issued, a search made and the warrant with the officer’s return filed. Section 8 designates the procedure then to be followed. Section 9 provides for cases of the second class. It requires the officer, without a warrant, to arrest the offender and seize the liquor, vessels, fixtures and appurtenances, to take the offender before the court or judge, make complaint
The present proceeding was instituted and prosecuted upon the theory that there was presented a ease of a violation of the law in the presence of the officer, and though there was not a literal compliance with the terms of the statute, the defendant cannot complain that he was not arrested or taken before the court dr judge. Aside from this dereliction of duty on the part of the officer, there was a substantial compliance with the provisions of sections 8 and 9 of Chapter 143 above. Neither section 8 nor section 9 was repealed in terms by Chapter 9, Laws of 1921; but it is the contention of the defendant that, by necessary implication, section 9 was superseded by section 26 of the later Act. Section 26 provides: “When any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrested under the provisions of this Act in any court having competent jurisdiction; # * * The court upon conviction of the person so arrested shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized,” etc. The words “or possessed” in the second sentence of this section are apparently meaningless and
Section 39 of Chapter 9, Laws of 1921, declares that “except as herein otherwise specified, this Act shall be construed as supplemental to and a part of all laws of this state relating to intoxicating liquors.” In other words, the legislature declared that after the particularly enumerated changes in prior laws had been effected, Chapter 9 should then be construed as supplemental to and a part of the remaining statutes dealing with this subject, and this declared purpose the courts are not at liberty to disregard. “Supplemental statutes include-every species of amendatory legislation which goes to complete a legislative scheme.” (First State Bank v. Bottineau County Bank, 56 Mont. 363, 8 A. L. R. 631, 185 Pac. 162.) Construed according to the manifest intention of the legislature, Chapter 9, Laws of 1921, is to be read with Chapter 143, Laws of 1917, as constituting one general legislative plan;-and since there is not any irreconcilable conflict between the provisions of section 9 of the one Act and section 26 of the other, each is to be given full force and effect.
Prior to the enactment of Chapter 9, Laws of 1921, a-statute substantially in the language of section 9 of Chapter 143, Laws of 1917, had been held to be not sufficiently comprehensive in its terms to authorize the seizure of an automobile or other
Again, it is contended that the trial court erred in refusing to order the liquor, container and handbag returned to the defendant upon his written demand therefor, seasonably made, and the decision of this court in State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362, is invoked in this behalf. In the Samlin Case we went no further than to hold (1) that a search-warrant issued upon a complaint or affidavit which does not set forth any facts showing, or tending to show, probable cause, is void, and (2) that articles seized by virtue of such warrant should be suppressed as evidence and returned to the owner whenever, in a direct proceeding instituted prior to the hearing to test the validity of the process, it is made to appear that the articles were seized unlawfully. That case has no application to the facts here presented. There is not a suggestion in the record that the articles in question were seized or held as evidence. In the Samlin Case, the property was ordered returned to the possession of the owner only as an incident to his right to have it suppressed as evidence. We do not mean to intimate that one whose property is seized in a proceeding of this character cannot contest the officer’s right to its possession, but only hold that the Samlin Case does not authorize the. inquiry.
Prior to the hearing, defendant moved the court to quash the proceeding upon the ground, among others, that the complaint and sheriff’s return of the articles seized dis
Reverting to our premise that the sheriff may arrest without a warrant upon such state of facts as would justify the issuance of a warrant, it becomes necessary to consider what circumstances will justify the issuance of a warrant, and the authorities are unanimous in holding that there must be probable cause. The terms "probable cause” are variously defined, but an analysis of the definitions will disclose that the difference, if any, is in the mode of expression, rather than in the substance. "Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.” (Burt v. Smith, 181 N. Y. 1, 2 Ann. Cas. 576, 73 N. E. 495.) "Probable cause for a criminal prosecution is, in effect, the concurrence of the belief of guilt with the existence of facts and circumstances reasonably warranting the belief.” (Runo v. Williams, 162 Cal. 444, 122 Pac. 1082.) "It is not essential to probable cause for an arrest that the accuser believe that he had sufficient evidence to procure a conviction.” (Michael v. Matson, 81 Kan. 360, L. R. A. 1915D, 1, 105 Pac. 537.) "Probable cause * * # does not depend on the actual state of the case in point of fact, for there may be probable cause for commencing prosecution against a party although subsequent developments may show his absolute innocence.” (Mundal v. Minneapolis & St. L. R. Co., 92 Minn. 26, 99 N. W. 273.) “The expression ‘probable cause,’ as used in the federal Constitution referring to the issuance of warrants, means that there is a probability that a crime has been committed by the
In Burt v. Smith, above, the New York court said: “One may act upon what appears to be true even if it turns out to be false, provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable. Belief alone, however sincere, is not sufficient, for it must be founded on circumstances which make the belief reasonable.” The same rule as applied to an arrest without warrant is stated in 5 C. J. 417, as follows: “The reasonable and probable grounds that will justify an officer in arresting without a warrant one whom he suspects of felony must be such as would actuate a reasonable man acting in good faith. The rule is substantially the same as that in regard to probable cause in actions for malicious prosecution, and there is no difference in its application between arrests for felonies and arrests for misdemeanors. The necessary elements of the grounds of suspicion are that the officer acts upon a belief in the person’s guilt, based either upon facts or circumstances within the officer’s own knowledge, or upon information imparted to him by reliable and credible third persons, provided there are no circumstances known to the officer sufficient to materially impeach the information received. It is not every idle and unreasonable charge which will justify an arrest. An arrest without a warrant is illegal when it is made upon mere suspicion or belief, unsupported by facts, circumstances or credible information calculated to produce such suspicion or belief.” (See, also, Words & Phrases, • Second Series, 1224 et seq.)
The record before us discloses these facts: At the time of the seizure the sheriff knew that a banquet was being given in the Hotel Deer Lodge and that some of the persons present showed the effects of having been drinking intoxicating liquors. It was about 9:30 of the evening of April 30 while the banquet was in progress, and defendant was in an alley immediately west of the hotel. He was carrying the demijohn
There does not appear to be any reversible error in the record, and the judgment is affirmed.
Affirmed.
Concurrence Opinion
concurring: I concur in the conclusion reached by Mr. Justice Holloway, but in doing so do not wish to be understood as giving my assent, even by implication, to the proposition that an arrest may be made without a warrant in any case where the facts and circumstances, independently of those discovered through the arrest, are not sufficient to produce in the mind of the arresting officer a conviction, which amounts to a practical certainty, that he is witnessing, at the time, the commission of a public offense. In other words, mere suspicion founded upon hearsay evidence only, however trustworthy in source, without personal observation by the officer of occurrences actually taking place at the time, which, in themselves, indicate that an offense is being committed, does not justify an arrest or seizure. To recognize any other rule would authorize the officer to arrest upon a bare suspicion not supported by the actual existence of facts and circumstances which, in the mind of a reasonable person, point to the commission of an offense; and it must not be overlooked that the provision of the Constitution prohibiting unreasonable searches and seizures (Constitution, sec. 7, Art. Ill) makes no distine
Dissenting Opinion
dissenting: I dissent. That which is said in the majority opinion respecting the construction of the provisions of the Act of 1921 (Chap. 9, Laws Extra Session 1921) as additions to and supplementary to the unrepealed provisions of the Act of 1917 (Chap. 143, Laws 1917) meets with my approval. (State v. Bowker, ante, p. 1, 205 Pac. 961.) However, I do not and cannot agree to the latter portion of the opinion, holding in effect that a sheriff or other peace officer is authorized upon suspicion to arrest a person carrying a grip or satchel and examine the contents thereof without either a warrant of arrest or a search-warrant. Such-holding has no place under our theory of government. It is violative of the foundation principles establishing the freedom of the Anglo-Saxon race as embraced in the Magna Charta exacted of King John by the people at Runnymede, July 15, 1215, section 38 of which provides: “No bailiff from henceforth shall put any man to his law upon his own bare saying without creditable witnesses to prove it.” In its tendency it is destructive of the Bill of Rights for which our forefathers fought so valiantly and successfully in the Revolutionary War.
If such invasion of the personal rights and liberties guaranteed to the people be given sanction by the judicial department of this state, it is, in my opinion, a distinct and far-reaching backward step tending to destroy our much boasted of and said to be carefully guarded liberties. Reform measures are unobjectionable, but the vigor, ardor and arguments of their advocates should not induce the court on any theory to disregard or avoid the constitutional guaranties of our people. The Constitution applies with equal force to crimes committed against the prohibition laws; its guaranties are equally sacred and inviolate as to all crimes, and no exception or distinction should be made as respects laws for the enforcement of prohibition. The rule enunciated by the majority is not consistent with the holding of the entire court in the Samlin Case (State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362), for if a peace officer is authorized
In the Samlin Casé we held that a search-warrant issued upon an affidavit alleging merely that the affiant “has probable cause to believe and does believe” intoxicating liquors are unlawfully possessed in certain premises described, is not sufficient to authorize the issuance of a search-warrant, being violative of section 7 of Article III of our Constitution; that
“To thus limit the power of a peace officer makes difficult the enforcement of a law whose strict enforcement is undoubtedly a matter of grave public policy; but this is far better, in the final analysis, than the establishment and encouragement of a practice which would dishonor and transcend the basic and fundamental principles of our constitutional form of government.” (State v. One Hudson Automobile, 190 N. Y. Supp. 481, 116 Misc. Rep. 399; People v. 738 Bottles of Intoxicating Liquor, 116 Misc. Rep. 252, 190 N. Y. Supp. 477.)
Upon the state of facts presented, “the seizing officer was nothing but a trespasser acting in open violation of law, and the trial court should have, on ascertaining the facts, ordered the seizing officer to return the property to the claimant, and
“The function of the courts of this country is to enforce a government of laws, and not a government of men. The final arbiter in all cases presented to appellate courts is the substantive law as controlled, limited, and regulated by the written law (meaning by the written law, the federal and state Constitutions, and the statute law enacted in accordance with the Constitutions). When an appellate court abandons the law as thus defined, it puts its ear to the ground to determine what is popular and what will or will not please the popular will. Such a court is then treading near a precipice that may engulf this government in anarchy. Such a court has broken with the law and the accepted wisdom of the ages and is accepting in lieu thereof the rule of the popular will, and this is only a euphonious name for mob law and means nothing else but mob law in its final analysis. Between these two positions there can be no halting of the ways if we are to save our government from confusion and ultimate anarchy.
“We know of no court or judge that has openly and specifically committed itself to a rule of men in lieu of a rule of law. This does not mean that the courts are opposed to progress or change, but do'es mean that the courts are irretrievably committed to the propositions that, when these changes come, they must be changes in accordance with the fixed rules of law providing for such changes, and not by ignoring, overriding, and disregarding the legal methods providing for such changes.” (Hess v. State (Okl.), 202 Pac. 310.)
The passage of the prohibition amendment to the federal Constitution did not inaugurate a reign of legislative despotism to be carried out by snooping constables or peace officers, as to them may seem expedient. The Constitution was amended, not abrogated, and searches and seizures are to be made to-day as yesterday, according to the law of the land.
I do not believe that my learned and worthy associates fully appreciate the importance of the principle laid down in this decision. To my mind, it knocks at the very foundation of guaranteed constitutional rights of the people, and I feel that I should be derelict in the performance of my duty were I not to voice emphatic protest. Under this decision, every person who carries a container for liquids may be subjected to an invasion of personal rights and privileges—the messenger who flies from the dairy with pasteurized product of the cow, in basket or bottle, to the infant in the nursery, as well as the druggist clerk who carries a demijohn or flask which cheers the expiring moments of the sick or aged on their hospital cots. My brothers at the bar had best discard their green bags and portfolios for fishnets, in order to avoid inquisitive constables attracted by a bulging bag, from mussing their papers while forcing an inspection.
The learned trial judge was in far better position, after the hearing and examination of the exhibits, to make determination of probable cause for the arrest of the defendant and the seizure of the grip and contents than the sheriff could possibly have been at the time of the arrest. The sheriff could only suspect and surmise, but the judge found, -among other facts, that the handbag “contained one two-gallon demijohn full of whisky of an excellent quality and not of the moonshine variety.” It is not clear from the record, however, upon just what proof this judicial determination was made.
The record discloses that the defendant appeared by motion to quash the proceedings and made timely formal demand for the return of the property seized, asserting that the seizure made by the sheriff was wrongful, unlawful, without and in excess of jurisdiction. In my opinion the motion should have been sustained, the proceeding dismissed and the property returned to the defendant, having been unlawfully taken from his possession.
