177 P. 235 | Utah | 1918
Lead Opinion
This was an action brought on behalf of the plaintiff, the state of Utah, against certain intoxicating liquors, under the provisions of chapter 2, Laws of Utah 1917, prohibiting and regulating the sale, manufacture, use, possession, etc., of intoxicating liquors within the state.
It appears from the record here that on September 20,1917, affidavit was made and filed in the district court for Weber county that certain intoxicating liquors were then unlawfully held at the Paris Hotel in Ogden City, Utah, and that thereupon a search and seizure warrant was duly issued commanding the sheriff of said Weber county to search said premises and seize the liquors alleged to be on said premises. In executing the warrant a large quantity of liquor, to-wit, “sixteen gallon jugs, five gallon jugs and three gallon jugs of wine, thirty-nine bottles of beer, twenty-two pint flasks of whisky, fourteen one-half pints of whisky, three broken pints of whisky, one ten-gallon keg of wine, three barrels of bottled wine, twelve barrels of wine, each containing about fifty gallons, and forty-five broken bottles of wine and whisky,” was found on the said premises and taken into possession by the said sheriff. After seizure of the liquors, notice was given all persons to show cause why the same should not be forfeited as provided by law, and thereafter, October 13, 1917, Joseph Laueirica appeared in said action claiming the liquors. Thereupon an order was made by the said district court making him a party defendant in said action. Thereafter, the defendant Joseph Laueirica filed his answer in said action, claiming said liqours and alleging that — •
“He had the same in his home and was then and there using the same for his own family use, and that he and his family used said beverages instead of tea and coffee and as a part of
The said defendant further alleged that he had been tried on September 22, 1917, in the municipal court of Ogden City, Utah, upon a criminal charge brought by the state of Utah against him for unlawfully having the said liquors in his possession, and that after a trial in said court, involving the identical issues then before the district court, he had been duly acquitted, and that said former adjudication and acquittal was a bar to this proceeding.
It appears from the record that other preliminary proceedings were had before the district court, not material here nor necessary to mention in the consideration of the defendant’s appeal to this court.
The case was tried to the court without a jury. The trial court found the issues in favor of the plaintiff and ordered and adjudged that the liquors seized be forfeited to the state of Utah; that they be destroyed by the sheriff of Weber county; and that their retainers be sold at public auction as provided by statute. The defendant, Joseph Laucirica, relies upon, complains of, and assigns as errors on the part of the district court:
First. The refusal of the trial judge to grant a change of venue and a continuance upon defendant’s application.
Second. The refusal to grant the defendant a jury trial.
Third. The refusal to entertain the evidence of defendant’s former acquittal in the municipal court of Ogden City, pleaded in bar to plaintiff’s action.
AYe find no merit in this appeal, and therefore it is ordered that the judgment of the district court be affirmed. Costs to respondent.
Dissenting Opinion
(dissenting).
I am unable to concur in the order affirming the judgment of the district court. There is such a thing in this state, even under the provisions of chapter 2, Laws Utah 1917, known as the “Prohibition Act,” as lawful as well as unlawful possession of intoxicating liquors. On the date of issuing the search and seizure warrant by which the liquors in question were taken from the defendant Lauciriea, he was at the same time arrested for unlawfully having such liquors in his possession, upon a warrant issued from the municipal court of Ogden City. That court unquestionably had jurisdiction-to try the issues in such proceeding. Subsequently a trial was had, and the defendant was acquitted of the charge of having such liquors unlawfully in his possession. At the trial of this action the defendant offered the record of the proceedings and the judgment in that case as a bar. That the controversy in both proceedings related to the same subject-matter and was between the same parties is, in my opinion, self-evident. It is not contended that the right exists in the state to forfeit intoxicating liquors unless the .same are unlawfully held by the party in whose possession the same are found. By the provisions of section 17 of said chapter 2, when any one shall appear and claim the liquors, vessels, etc., taken under the search and seizure warrant, the trial “may be the same substantially as in the cases of criminal prosecutions before such courts,” etc. Necessarily it must follow, under that pro