No. 4,408 | Mont. | Jan 30, 1920
delivered the opinion of the court.
The provisions of Chapter 143, Laws of 1917, page 239, commonly known as the Enforcement Act, furnish the basis for this proceeding. Section 7 thereof authorizes the court, upon á proper showing, to issue a search-warrant directing the seizure of all intoxicating liquors found within the building or premises therein described.
As stated above, the search-warrant contains a copy of the complaint and commands the officer to thoroughly search the premises described in the complaint.
The sole question for decision is whether the premises searched ■and in which the property described in the officer’s return was found were the same premises described in the complaint and search-warrant. The district court granted the motion to dismiss and gave judgment against the state upon the ground of variance between the search-warrant and the proof. The officer to whom the search-warrant was delivered and to whom directions were given to search “that certain building situate at and numbered 601 North Main Street, Butte,’’.upon the trial, testified!: “There is no 601 North Main Street. * * * The only number I saw on the building was 603. # * * I entered the building on Woolman Street. There are three entrances from the outside that I know of to the building.”
Assuming, as we. are bound to do under the settled rule of this court, that all the evidence tending to prove plaintiff’s case is true, it is apparent that the proof failed to establish the fact that the premises actually searched were the premises described in the search-warrant. As was observed in State v. Guthrie, 90 Me. 448" court="Me." date_filed="1897-06-16" href="https://app.midpage.ai/document/state-v-guthrie-4935998?utm_source=webapp" opinion_id="4935998">90 Me. 448, 38 Atl. 368, a search-warrant “is a sharp and heavy police weapon to be used carefully lest it wound the security or liberty of the citizen.” In State ex rel. Streit v. Justice Court, 45 Mont. 375" court="Mont." date_filed="1912-04-15" href="https://app.midpage.ai/document/state-ex-rel-streit-v-justice-court-8021741?utm_source=webapp" opinion_id="8021741">45 Mont. 375, 48 L. R. A. (n. s.) 156, 123 P. 405" court="Mont." date_filed="1912-04-15" href="https://app.midpage.ai/document/state-ex-rel-streit-v-justice-court-8021741?utm_source=webapp" opinion_id="8021741">123 Pac. 405, it is said: “The search-warrant was not known to the early common law. It grew up by ‘imperceptible practice’ and was first confined to the ease of stolen goods. Its legality was denied by Lord Coke. (Entick v. Carrington, 19 How. St. Tr. 1030.) The use of it was subsequently extended. (2 Chitty’s General Practice, p. 180.) Because it is a process subject to much abuse,
A clear elaboration of the forms to be observed in proceeding under this act will be.found in the opinion of the Chief Justice in the very recent case of State ex rel. Prato v. District Court, 55 Mont. 560" court="Mont." date_filed="1919-03-15" href="https://app.midpage.ai/document/state-ex-rel-prato-v-district-court-8022691?utm_source=webapp" opinion_id="8022691">55 Mont. 560, 179 P. 479" court="Okla. Crim. App." date_filed="1919-03-26" href="https://app.midpage.ai/document/mcneal-v-state-3826046?utm_source=webapp" opinion_id="3826046">179 Pac. 479.
The authority of a searching officer, susceptible as it is of
The judgment appealed from is therefore affirmed.
Affirmed.