79 Me. 104 | Me. | 1887
The defendant moves to arrest a judgment against him under a search and seizure complaint, and warrant, for the alleged reason that the complaint is defective and that at most the arrest of him on the warrant was illegal. We do not think so.
Following the order adopted in R. S., c. 27, § § 30 to 37 inclusive, of first prohibiting the various modes, therein described, of selling intoxicating liquors, and then fixing the respective penalties for a violation thereof, the statute then takes up the matter of the liquors themselves. Accordingly § 38 prohibits the depositing or having them in one’s possession with intent that they shall be sold in this State. Section 39 declares them and their vessels forfeited to the town where kept when seized; and authorizes an officer whenever he could seize them with a warrant, to do it without one and hold them in some safe place, "for a reasonable time, until he can procure such warrant.” Experience suggested the necessity of this provision,for not infrequently liquors liable to seizure and seen by an officer who did not then have a warrant, were not readily found after a complaint and warrant had been 'made and obtained. Hence to meet this emergency this provision was enacted to allow an officer, as in analogous cases, by virtue of his official capacity, to act at once, by taking the liquors into his possession and keeping them until he could procure a warrant for their seizure, provided he obtained one within a " reasonable time ” which, in the absence of any good reason for a longer delay, should not exceed twenty-four hours. Weston v. Carr, 71 Maine, 356.
After the officer has taken possession of the liquors and their vessels and put them in a safe place, he can do nothing more with them until he procures "such warrant” as is mentioned in the last line of this section, which is a warrant on which the
Then § 40 points the mode of making a complaint and obtaining a warrant on which to search for and seize liquors — or in other words " such warrant.” State v. Grames, 68 Maine, 418, 421. And as this is the only provision under which a warrant can be obtained to search and seize liquors in a place, he must proceed thereunder, within the time mentioned, obtain a warrant and seize the liquors thereon, the same as when having arrested a thief in the act of committing a larceny, he subsequently to securing possession of the offender obtains a warrant and arrests and holds him under that, and so returns on it.
In making a complaint for a warrant to search a place for liquors before the search is made, the allegations must be made in the present tense, to wit: that they " are unlawfully kept and and deposited ” and that they " are intended for sale within the State in violation of law,” the statute form using both forms "were and still are,” for in such cases the provisions are "aimed against a present and not a past possession of liquors.” State v. Howley, 65 Maine, 100, 102. But when an officer has taken them into his possession for safe keeping without a warrant and then proceeds, in the only mode known to the statute, to make the necessary complaint to procure a warrant, the allegations must be changed to the past tense — that they were unlawfully kept and deposited in tlie place when and where the officer found them when he took them and that they were then and there intended for sale within this State in violation of law ; for after being taken by the officer even for safe keeping only, it could no longer be consistently alleged that they still " are kept ” and "are intended for unlawful sale.”
When the warrant is thus obtained with the proper allegations in the complaint, the liquors are taken thereupon and due proceedings had thereunder. Thus in the case already cited, in construing what is now § 39, Peters, J., said: "By that provision, an officer may seize liquors without a warrant; but in such a case he must keep them until a warrant can be obtained; so that, when a warrant is procured, the officer can take the
And when the name of the person so keeping said liquors is stated in the complaint, the officer shall be commanded by the warrant to arrest him. R. S., c. 27, § 40.
The officer’s return therefore is correct, that he seized the liquors mentioned in the complaint " by virtue of the warrant.” State v. McCafferty, 63 Maine, 223.
The complaint also properly sets out the essential facts of the officer’s primary taking the liquors " by virtue of his authority of a duly qualified deputy sheriff,” and not by virtue of a warrant and of his keeping them until on the same day he applied for a warrant.
Exceptions overruled.
