State v. Plunkett

64 Me. 534 | Me. | 1874

Appleton, C. J.

This is a search and seizure complaint. The building to be searched was the dwelling house of the defendant. The proceedings are in due form of law. The essential facts to justify such search were duly set forth. The jury, upon satisfactory evidence, have rendered a verdict against the defendant and the liquors found. In other words, the defendant is guilty of having liquors with intent to sell the same in violation of law. The offence is established. The liquors are liable to forfeiture — the defendant to the penalty provided by the statute.

The affidavit required by R. S., c. 27, § 35, is a condition precedent to tlie issuing of a search warrant. The statements it contains as to matter of belief are not issuable facts. The inquiry was not whether the complainant was right in testifying to the facts which led to the search and upon the search to the finding and seizure of liquors. The question to be tried was whether the liquors so found were liable to forfeiture and the person keeping them to the penalty established by the statute.

The possession of spirituous and intoxicating liquors with intent to sell in violation of law, is an offence. The defendant’s possession with such intent was unlawful, wherever he kept his liquors.

In Commonwealth v. Dana, 2 Metc., 337, lottery tickets seized were offered in evidence on the trial of the defendant. It was objected that they were not admissible. “Admitting,” observes Wilde, J., “that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done ; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were.” A collateral issue will not be raised to determine whether or not proof, in itself competent, was lawfully or unlawfully obtained. Legatt v. Tollervey, 14 East., 302; Commonwealth v. Welsh, 110 Mass., 360.

If the liquors were kept in violation of law, they were none the less liable to forfeiture, because the possession of them was wrongfully or illegally obtained. State v. McCann, 61 Maine, 116. The defendant is none the less guilty, however the government may obtain possession of his person. If a complaint is made against one for larceny and a search warrant is granted, and the stolen goods found, the thief is not to be discharged when his guilt is fully established, because the officer in serving the warrant may have exceeded his authority, or the complainant may not have had sufficient reasons for the belief upon which his complaint was based. In the case at bar, the offence was committed wherever the liquors were kept and deposited, if kept by and deposited with the defendant for unlawful sale within the state. The offence is committed, whether they were in his store or his dwelling. The guilt of the respondent is not converted into innocence, though the belief of the complainant as to some of the allegations in the complaint were not well founded, or the officer, in its service, exceeded his authority.

The government offered in evidence the record of a prior conviction, to the admission of which the counsel for the defendant objected. Neither the purposes for which it was offered nor the reasons for the objection taken to its admission are disclosed. It does not seem to have been the subject of allusion in the charge of the judge, which is fully reported. When objection is made to the admission <jf evidence, which of itself is competent generally, the grounds upon which the objecting party relies, should be stated. “Not having disclosed the character and ground of his objection,” observes Barrows, J., in State v. Bowe, 61 Maine, 171, “at the time when, if it had any substance, he should have done so, he cannot be permitted to lie in wait with it as a cause for a new trial.”

But one of the questions involved, was the intent of the respondent. When a complaint was made for keeping liquors on a day certain with intent to sell, evidence is admissible of sales made in the defendant’s shop before that day, and of his statements five months previously that he was the owner of the same. Commonwealth v. Dearborn, 109 Mass., 369. So in Commonwealth v. Stoehr, 109 Mass., 365, on a trial of a complaint for keeping intoxicating liquors on a certain day with intent to sell, evidence of a seizure of such liquor before that day at the place kept by the defendant and of sales made three weeks before is admissible, “because it tended to prove that the liquors found on the premises on the day named in the complaint were kept by the defendant with intent to sell them in violation of law.” In case of an indictment for keeping a nuisance, evidence is admissible to show that the defendant made sales in the tenement eight weeks before the first date mentioned in the indictment. Commonwealth v. Kelley, 116 Mass., 341. The record introduced showed that to a complaint similar to the one under consideration the defendant had by plea admitted his guilt. It was admissible on the question of intent. Exceptions overruled.

Walton, Dickerson, Barrows, Yirgin and Peters, JJ., concurred.