Dеfendant, Cassa Pachesa, was found guilty of the unlawful possession of moonshine liquor, and was sentenced to pay ai fine of $300.00 and to serve thirty days in jail. This writ followed.
The reasons assignеd by defendant’s counsel for reversal of this case are: (1) that the search warrant under which the liquor was found was void, and therefore- no evidence procured thereunder сould be used against defendant; and (2) because the defendant was a married woman living with her husband in a building owned by him and another, and therefore her husband was by law presumed to own and possess everything in their home.
Was the search warrant under which the intoxicating liquor was seized void? The warrant was issued on June 10, 1925, and was executed on July 30, 1925 — fifty days after the date of its issue. Defendаnt’s counsel contends that this was an unreasonable delay in its execution, and therefore the warrant was invalid when the search was made, citing
State
v.
Guthrie,
In
State
v.
Guthrie,
In
Link
v.
Commonwealth
(Ky. 1923),
In Farmer v. Sellers, 89 S. C. 492, an officer had held a search waraant for 48 days, and while attempting to serve it, was killed by the occupant of the рremises to be searched. The court held that in the absence of any statutory provision, a search warrant should be executed within a reasonable time, but what constituted а reasonable time was ordinarily a question of fact for the jury, under the facts and circumstances of *610 each case, unless but one conclusion could be drawn from the evidеnce, in which latter case it became a question of law for the court. It was held that under the facts and circumstances existing in that ease, the court was not warranted in saying аs a matter of law that a delay of 48 days in the execution of the warrant was so unreasonable as to vitiate it. In passing, the court said, in referring to State v. Guthrie, supra, “It is important to observe that thе question before the Maine Court was whether the defendant should be discharged from arrest under the warrant, not whether he would be justified in shooting an officer undertaking to enforce the warrant. ’ ’
Our search for authorities on this question has revealed but three cases besides those cited by counsel, they are:
McClary
v.
State
(Okla. 1925),
In McClary v. State, supra, the court held that a search warrant executеd fourteen days after its issue was ihvalid, in view of the statutory provisions of that state, especially Sec. 2886 of the Criminal Code, which provides that a search warrant must be executed and returned to the magistrate by whom it is issued within ten days, and that unless so executed the warrant is void.
Elrod v. Moss, supra, was an action for false imprisonment and illegal search of the plaintiff’s automobile. The search warrant was issued on May 18, 1920, but was not executed until June 25, 1920. The federal circuit court of appeals said that as there was no South Carolina statute requiring search warrants to be executed within a stated time, and as there were facts and circumstances which tended to throw light upon the delay in the service of the warrant, the question of whethеr it was executed within a reasonable time, was for the jury, following Farmer v. Sellers, 89 S. C. 492.
In
Killer
v.
State, supra,
the Wisconsin Supreme Court said: “It is next argued that the search warrant was invalid at the time of its execution because it was not served promptly after its issuance. The search warrant was issued on the morning of August 26th, and was executed by the sheriff at
*611
6 o’clock p. m. on August 29th. This contention is based mainly upon
State
v.
Guthrie,
We have no statutatory рrovisions in this state applicable to search warrants which require their execution within any stated period, but See. 6, of Art. 3 of our State Constitution provides that the rights of citizens to bе secure against unreasonable searches and seizures, shall not be violated. And under this constitutional provision a search made under authority of an invalid warrant would be an unrеasonable search. Was the search warrant in this case void at the date of its execution ? In determining this question it will be well to bear in mind that as search warrants are a speсies of process exceedingly arbitrary in character, which ought not to be resorted to except for very urgent and satisfactory reasons, the rules of law applicable to them should be strictly construed. Copley on Const. Lim., (7th ed.), page 429. When we take into consideration the historical background of the search warrant and the fundamental principles underlying and regulating the use of this arbitrary form of process, it would seem to be a salutary ride to hold that where there is no time fixed by statute during which a search warrant must be executed, it shall be executed within a reasonable time from the date of its issue.
Hiller
v.
State,
(1926 Wis.),
In thе instant case no effort was made to explain the delay in the execution of the search warrant. However, it does appear from the evidence that the statе trooper who had possession of the warrant from the date of its issuance until its execution, 50 days later, was stationed during that period of time in the same town as that in which the defendant lived, his barracks being within six hundred yards of defendant’s residence. In view of the failure of the state to introduce any evidence tending to explain the delay, and there being no faсts or circumstances apparent from the record which would serve to shed any light upon this question, and in view of the further fact that by the terms' of the. warrant itself the officer executing it was commanded to “forthwith” enter the premises to be searched, we are of the opinion that but. one conclusion can be reached in this case, and that is that the search warrant was invalid when the search was made, because it was not executed within a reasonable time from the date of its issue.
The admission of the evidence obtained by means of this search warrant was improper, and the verdict will be set aside as contrary to the law and the evidence.
Judgment reversed; verdict set aside; new trial awarded.