State v. Kelly

187 P. 637 | Mont. | 1920

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On April 12, 1919, John P. Murphy made complaint to the-district court of Silver Bow county that he had' reason to believe, and did believe, that intoxicating liquors were being kept,, possessed and deposited at the Almira Apartments, in Butte,. with the intention that such liquors should be sold, exchanged, given away or otherwise disposed of in violation of the laws of the state of Montana. The complaint named as defendants, John Doe Kelly, afterwards identified as Joe D. Kelly; Bichard Boe, thereafter identified as B. P. Dickerson; Jennie Doe, thereafter identified as Lucille Howard, and certain intoxicating liquors. A search-warrant was issued, the premises searched and a large amount of intoxicating liquors and' other property seized. After the return of the warrant, Miss Howard made claim to substantially all of the liquors, and Kelly and Dickerson each made claim to a portion of them. Upon the hearing, claimant Howard demanded a jury trial, which was denied, and from the judgment forfeiting the liquors 'and ordering them destroyed and from an order denying her a new trial, she appealed. These questions are presented:

1. The right of a party claiming the property seized to a trial by jury.

2. The sufficiency of the evidence to justify the judgment of confiscation.

3. The right of the state to tax the costs against the party claiming the property; and

4. A preliminary question of practice, viz.: The right of a party claiming the property to move for a new trial.

1. New trial proceedings are purely statutory. (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.) The search and seizure statute [1] (Prohibition Enforcement Act, Chap. 143, Laws of 1917) makes no provision for a new trial. The general statute governing new trials has to do only with the re-examination of issues of fact arising upon formal pleadings (State ex rel. Culbertson Ferry Co. v. District Court, 49 Mont. 595, 144 Pac. 159), ■and from the very nature of it, cannot have application to a proceeding of this character. The attempted appeal from the ■order denying a new trial is dismissed.

2. The proceeding authorized by Chapter 143, above, is instituted by a sworn complaint (section 7), but this does not mean necessarily a formal pleading. It may be in the form of an affidavit (section 8). Upon the hearing the question for [2] determination is: Were the articles seized or any of them used, kept or possessed by any person with the intention of violating the prohibitory liquor law (section 8). At such hearing, any person claiming an interest in any of the property seized may appear and be heard upon filing a verified claim setting forth particularly the character and extent of his interest. The statute does not require or contemplate that any person shall be made defendant either in the complaint (section 7) or in the search-warrant (section 9682, Kev. Codes). The right of a party to be heard in opposition to the condemnation does not depend upon the fact that he is named a defendant but solely upon the fact that he presents a verified claim. This proceeding is altogether distinct from the abatement proceeding and criminal prosecution for violation of the liquor laws. From the time of the seizure until final judgment, the liquors are in the custody of the law (section 10, 23 Cyc. 298). If the evidence warrants the conclusion that they are contraband, they are subject to forfeiture, and the question of ownership is altogether immaterial. If, however, the court determines that the liquors were not kept with intention to violate the law, the state has then no further interest, except the right of appeal, and no further right to retain possession. It follows that it is not until the court has first determined that the liquors are not contraband- that the question of ownership arises, and it arises then only to the extent that a determination becomes necessary to enable the court to say prima fade to whom it will deliver [3] possession. Anyone who makes the required claim of ownership becomes a party to the proceeding to the extent that he may appeal from a judgment of forfeiture, but the determination by the court is not in any sense an adjudication of title as between conflicting claimants, and this is all that was meant by the language employed in State ex rel. Prato v. District Court, 55 Mont. 560, 179 Pac. 497. These observations are intended to emphasize the character of the proceeding authorized [4] by Chapter 143. It is a proceeding m rem against the liquors themselves for their condemnation as forfeited property. It is purely of statutory origin, is civil in nature (section 37), and. summary in character. (State ex rel. Prato v. District Court, above; 23 Cyc. 299.)

The right of trial by jury in the classes of cases in which it. [5] was enjoyed at the time our Constitution was adopted remains inviolate, and is secured to all by section 23, Article III. In all other cases the legislature may provide for a trial or hearing without a- jury. (Finch v. Kent, 24 Mont. 268, 61 Pac. 653.)

Such summary proceedings as were known to the common law [6] were not triable by jury as a matter of right. (4 BL Com. 280.) Summary proceedings of this character authorized by the state in the exercise of its police power and designed to effectually suppress the unlawful traffic in intoxicating liquors were unknown to the common law or to the statutory laws of this territory at the time our Constitution was adopted, and are not comprehended in the guaranty of trial by jury. Upon this question there is some diversity of opinion, but the decided weight of authority and the better reasoning support the view herein indicated. (Frost v. People, 193 Ill. 635, 86 Am. St. Rep. 352, 61 N. E. 1054; Kite v. People, 32 Colo. 5, 74 Pac. 886 Campbell v. State, 171 Ind. 702, 87 N. E. 212; Kirkland v. State, 72 Ark. 171, 105 Am. St. Rep. 25, 2 Ann. Cas. 242, 65 L. R. A. 76, 78 S. W. 770; State v. Intoxicating Liquor, 82 Vt. 287, 73 Atl. 586; 15 R. C. L. 412; 16 R. C. L. 216; 23 Cyc. 300.)

Cases cited by appellant within the admiralty and maritime jurisdiction of the federal courts and cases arising under the-revenue laws of the United States are not applicable.

It would not be questioned by anyone that if the forfeiture of the liquors were a part of the penalty imposed upon a defendant for a violation of the law, the right of trial by jury would obtain; but, as observed heretofore, this proceeding is' in rem, entirely distinct from, and independent of, the criminal prosecution and having different objects and results in view. The proceeding is more analogous to that provided by the Act, of Congress approved February 25, 1885, and considered in Cameron v. United States, 148 U. S. 301, 304, 37 L. Ed. 459, 13 Sup. Ct. Rep. 595 [see, also, Rose’s U. S. Notes],

The legislation in question does not transgress the Constitution in providing that intoxicating liquors may be forfeited and destroyed after a summary hearing by the court and a determination of their contraband character.

3. It is earnestly contended that the evidence is insufficient to sustain the judgment.- We have examined it carefully, but no useful purpose would be served in reviewing it at length. We content ourselves with saying that in our judgment it is ample. The most that can be said of it is that it presents a sharp conflict involving only the credibility of the witnesses.

4. In taxing the cost of the proceeding against claimant [7] Howard the trial court erred. Chapter 143 does not provide that cost may be taxed against a party claiming the property. The reference in section 11 is to the costs which may be imposed in a criminal prosecution for a violation of the liquor laws. Costs, whenever recoverable, become a part of the judgment (Spencer v. Mungus, 28 Mont. 357, 72 Pac. 663), and the only judgment authorized by section 8 is a judgment of forfeiture, which orders the offending property destroyed; in other words, it is a judgment in rem and does not run against, any person. Section 8, however, provides that if any of the condemned property is ordered sold, “the proceeds of such sale after the payment of all costs of such proceeding shall be. paid [8] into the common school fund, etc.” Section 13 determines the amount of fees allowed to officers and witnesses, and provides “such fees shall be certified to the board of county commissioners by the county attorney or attorney general and padd by the county, etc.” These provisions, we think, sufficiently indicate the legislative intention that the costs incurred in the district court are recoverable, if at all, from the sale of the property seized, provided any of such property is of the character which may be sold.

Rehearing denied March 1, 1920,

The cause is remanded to the district court, with directions to strike from the judgment the item of cost, and as thus modified, it will stand affirmed.

'Modified and affirmed.

Mr. Chief Justice Brantly and Associate Justices Hurly, Matthews and Cooper concur.