State v. Howley

65 Me. 100 | Me. | 1876

Peters, J.

Objection is made, that the officer’s return on a search and seizure warrant, was read to the jury. It should be read before them, in the opening, as a part of the statement of the case, but should not be regarded as evidence at all. The officer’s return is a part of the allegations to be proved, but is no part of the proof itself. It has the same effect in this process, that a return in replevin has in that process. State v. Stevens, 47 Maine, 357. State v. Lang, 63 Maine, on page 215. The case does not show that the return was read “in evidence,” or that it was allowed by the court to have that effect; although perhaps the exceptions are not clear as to that.

Upon the other point, we think the exceptions must be sustained. It seems, the officer undertook to make a seizure without a warrant, and was prevented from consummating it, by a scuffle with the respondent, during which the liquor was destroyed. The next day a complaint was made, and a warrant obtained, and the question is, whether, upon this evidence, the complaint can be sustained. We think not. The search and seizure statutes are aimed against a present, and not the past, possession of liquors. .The person is liable, who, at the date of the complaint, has liquors, and not the person, who before that time has had them in his possession, with intent to sell. There might be other forms of punishment, but this complaint, upon this evidence, cannot stand. Section 31, c. 27, K. S., is not applicable. By that provision an officer may seize liquors without a warrant; but in such case he must “keep” them till a warrant can be obtained; so that, when a warrant is procured, the officer can take the liquors thereupon. The warrant is usable nunc pro tunc. But here the officer had nothing in his possession for the warrant to retroact upon. Nor does section 11, of the same chapter, reach this case. In that case, the officer had a warrant. Here, there was none.

Exceptions sustained.

Appleton, C. J., Walton, Barrows, Daneorth and Yirgin, JJ., concurred.