State v. Kieffer, 187 N.W. 164

State v. Kieffer

187 N.W. 164 | S.D. | 1922

WHITING, J.

The notice of appeal herein is entitled as is this opinion. The parties named as appellants seek a review of an order made and entered by the circuit court of Aurora county. The record discloses the following facts: In October, 1921, a written application for a search warrant was executed by one Wood Smith and presented to a justice of the peace of Aurora county. Such application was entitled, “State -of South Dakota, Plaintiff, v. Joe Kieffer, Defendant.” A warrant was issued. Under such warrant, appellants Donegan, as sheriff, and Smith, as deputy state sheriff, seized certain personal property, evidently *291a still for making intoxicating liquors, some intoxicating liquor, and containers for such liquor. In December, 1921, an application was presented' to the _circuit court of Aurora county in a proceeding entitled “State of South Dakota, Plaintiff, v. Joe Kieffer, Defendant.” This application was made by the said Kief-fer; and, alleging that the personal property that had ¡been seized under the search warrant was in the possession of Donegan, Smith, and Barrett, he sought from the circuit court an order requiring these three appellants to show cause why they should not be required to return such personal property to him, and to show cause why such court should not hold that such property should not be, used as evidence against applicant. Upon the return of such order to show cause, the circuit court made and entered an order granting the relief prayed for by Kieffer. Prom such order appeal was taken; and the cause is now before us upon a motion to dismiss such appeal.

[1] It is clear that the search warrant was issued under 'section 10329, R. C. 1919, and that, in making the order appealed from, the court relied upon the following provision, contained in such section:

“Such liquor, furniture and implements * * * shall be held subject to the order of the court or magistrate to be used as evidence in the prosecution of any case for the violation of any law or any ordinance prohibiting the sale of intoxicating liquor throughout the district, township, town, city or county where seized.”

The motion to dismiss the appeal is based upon the grounds: That the proceeding in which the order appealed from was issued in a criminal proceeding, and that such order is not an appealable order under the statutes governing appeals in criminal actions; that appellants are neither parties to the criminal action nor parties aggrieved by said order; and that there is .no provison of law authorizing an appeal in a criminal proceeding by any party except the defendant therein- and the state. Appellants contend that the order from which they seek to appeal was not an order in a criminal action, but an order made in a special proceeding, and as such appealable. The crucial question, therefore, is, Is a proceeding for a' search warrant a criminal action or a special proceeding? If such order was issued in a special proceeding, the *292part directing the return of the property is a final order, and appealable under section 3168, R. C. 1919.

Section 2091, R. C. 1919, defines “action” as follows:

“An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”

Section 2092 declares that—

“Every other remedy is a special proceeding.”

[2] Under the general statutes of this state relating to search warrants (sections 4604-4624), we find that they can be issued for any one of three general purposes: (section 4605) To search for stolen or embezzled property; to search for property that has been used as a means of committing a felony; and to search for property in possession of some person who holds it with intent to use it as the means of committing a public offense. While the warrant must issue in the name of the state, the application therefor need not be entitled in the name of the state; and to entitle it like a crimnal action does not make it such an action. The proceeding is not one against any person; but is solely one for the discovery and to get possession of personal property. If property is discovered and taken possession of, such fact may or may not lead to an action or actions civil or criminal. The most that can be said is that a search warrant, under the general law, is usually issued on behalf of the state and for the purpose of obtaining evidence to support a criminal action already instituted or to furnish information determining the' propriety of bringing a criminal action. That such proceeding is not one in a criminal action is too apparent for controversy. Such a warrant might be issued by a magistrate in one county, where the crime, if any, had been committed in another. It might be issued by a magistrate to procure evidence to be used in an action then pending in or to be instituted in some other court. It might even be procured by a person for the purpose of using, and with the right to use, the property and the fact of its discovery, in an action either civil or criminal in another state or even in the federal courts. Under a search warrant, property may be found in possession of one person, and yet may be used in evidence against some other party or parties. It is, in fact, a special and peculiar *293remedy, drastic in its'nature, and made'necessary because of public necessity. It resembles in some respects what are commonly termed “John 'Doe” proceedings, or investigations in aid of prosecutions, such as are provided for by section 4504, R. C. 1919, except that the information procured under section 4504 is reduced to the form of sworn testimony, while, under the search warrant, property and information as to facts relating to the place where the property is found and circumstances surrounding its finding are procured.

[3J The search warrant, in the proceeding before us, was issued under and by virtue of a special law providing for the issuance of search warrants in aid of the enforcement of the laws against the sale and manufacture of intoxicating liquors. This law contemplates that, in case the search brings forth evidence of the violation of law, a criminal complaint shall be filed against the person or persons supposed to be guilty. However, such law expressly provides that it in no manner prevents the beginning of a criminal action before a search warrant is issued. Such law does not require that, in case a criminal action has been started, the search warrant must be issued by the court in which such action is pending; neither does it provide that, if a criminal action follows the return on the search- warrant, such criminal action must be started before the magistrate who issued the warrant. Proceedings for search warrants under this special law, as under the general law, are “special proceedings,” and in no sense “criminal actions,” though, like “John Doe” proceedings, intended solely in aid of enforcement, of laws against crimes.

[4] The record before us does not disclose facts explaining why the circuit court was applied to. We must assume that respondent was arrested charged with some offense, and that this personal property, and the fact that it had been found in his possession, might be used in evidence against him; and that, if such charge had been preferred .before the magistrate who issued the search warrant, respondent had been bound over to the circuit court, thus giving to such court jurisdiction in the criminal action. We do- not feel called upon, at this time, to express any views as to whether the words quoted above from section 103-29, R. C. 193:9, give to the circuit court any authority, before trial of the criminal action, to make any decision relating to validity of the *294search warrant, or pertaining to the sufficiency of the facts to support its original issue. Suffice to say that, if what was done by the circuit court has any support in law it is an order issued in the search warrant proceedings, which proceedings were not a criminal action, and were therefore “special proceedings.”

[5] However respondent contends that appellants were not so interested as to be aggrieved by such order. Appellants had possession of this property, and were answerable therefor. They were holding the property for and by authority of the state. If respondent had been seeking the possession from them under any other theory than that their holding was under the search warrant, he could not have asked summary relief under the search warrant statutes, but would have had to resort to a possessory action. We must therefore assume that the court in requiring them to show cause why they should not surrender this property to Kieffer, and in afterwards ordering them to surrender such property to Kieffer, was proceeding against them as representatives of the state. While appellants are not personally aggrieved by the order of the trial court, the state is aggrieved by such order, being deprived of a substantial right—the right to offer such property as evidence. The order appealed from was a final order affecting a substantial right of the state; and it was made in a special proceeding. The state had a right to appeal therefrom. Section 3168, R. C. 1919. As the only theory whatever upon which the order appealed from could have been addressed to appellants was that they were holding possession as representatives of the state, this appeal from such order should be treated as an appeal by and on behalf of the state. This case is, in the matter of procedure, on “all fours” with the case of Burdeau v. McDowell, 255 U. S. -, 41 Sup. Ct. 574, 65 L. ed. 683, 13 A. L. R. 1159. The property after seizure was in the hands of a representative of the government. The person from whom the property had been taken applied for its return. The district court ordered the holder of said property to turn same over to the court for delivery to claimant. The holder of the property appealed in his own name. Furthermore, the United States District Court specifically recognized that an appeal would lie from its order.

The motion to dismiss is denied.