The defendant, John Kriegbaum, was convicted of having privately manufactured distilled intoxicating liquor in his possession contrary to the statute. Bеfore sentence the trial court certified three questions to this court pursuant to the provisions of sec. 274.16 of the Statutes.
The first question is: Under par. (d), sub. (32), sec. 165.01 of the Statutes, providing that “the possession of any privately manufactured distilled liquors without such permit is hereby prohibited;” and sub. (28) of said section, providing that “The possession of liquоr by any person without a permit, other than in his private dwelling used exclusively as such, shall he prima facie evidence of unlawful possession
(a) Was the liquor received in evidence as a matter of law privately manufactured distilled liquor; and
(b) Was such liquor, as a matter of law, in defendant’s possession without a permit?
(a) Sub. (28), sec. 165.01, of the Statutes does not create an offense, but merely establishes a rule of evidence. Endish v. State,
The liquor here in question was not found in a private dwelling, but in a soft-drink parlоr. The analysis made of the liquor by the state chemist determined that the liquor in question was a distilled liquor with an alcoholic content of 49.5 per cent. Under sub. (28) of sec. 165.01, possession of such distilled liquor without a permit is prima facie evidence of unlawful possession. Nelson v. State,
The fact of the possession of a permit is one to be established by the defendant. Hiller v. State,
(b) The burden being upon the defendant to show that distilled liquor wTas lawfully in his possession under a permit, and the defendant not having met such burden, the conclusion follows as a matter of law that the liquor was in defendant’s possession without a permit.
Subdivision (b) of the first question is answered Yes.
The sеcond question is: Was the liquor received in evidence seized in violation of sec. 11, art. I, of the state constitution, providing that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things fi> be seized?”
The liquor in question was seized while a search of the person of the dеfendant was in progress under a search warrant issued by a justice of the peace which' expressly directed that a search be made of the person of the defendant while on the premises described in the warrant.
We express no opinion as to the power of a court of general jurisdiction to issue a warrant to search the person. We are concerned only with the question of whether the person of the individual described in the warrant can be searched under a search warrant issued by a justice of the peace, who can exercise only the' judicial power conferred upon justices of the peacе by the statutes when fairly interpreted. De Laval S. Co. v. Hofberqer,
Art. VII, sec. 15, of the constitution of Wisconsin provides that justices of the peace “shall have such civil and criminal jurisdiction as shall be prescribed by law.” It was the law of Wisconsin before this provision of the constitu^ tion was adopted and it has uniformly been held under this constitutional provision that “justices’ сourts are not courts of record, and do not proceed according to the course of the
Ch. 363 of the Statutes contains the only legislative enactment which grants any express рower to a justice of the peace to issue a warrant to search for liquor alleged to be illegally held or possessed. That chapter grants no author-, ity to issue a warrant for the search of the pеrson. .The authority conferred is confined to the search of a “particular house or place” whеre the property or thing sought is alleged to be concealed. We think it would be an unreasonable construction to hold that the legislature intended to confer the power to direct the search of the person of a human being when it granted the power to issue warrants to search the “place” where it is alleged that property is concealed. The legislature having granted no power to a justice of the pеace to issue a warrant for the search of a person, the conclusion follows that the liquor in question was received in evidence in violation of art. I, sec. 11, of the constitution of Wisconsin, which guarantees to the defendant immunity from unreasonable searches and seizures. A search made pursuant to warrant issued by a justiсe of the peace to whom the legislature had not granted the power to issue such a warrant is an unrеasonable search and in violation of the defendant’s constitutional rights under this section of that fundamental law.
The second question is answered Yes.
The third question assumes that defendant’s constitutional rights were not invaded by a search of his person, — an assumption that is contrary to the conclusion reached by this court, and it therefore calls for no answer.