Thе only question raised upon the appeal is as to the competency of certain evidence admitted in favor of the prosecution upon the trial of an information for maintaining a nuisance. This consisted of beer, seized on December 13, 1929, in execution of a search warrant issued on December fourth. The affidavit on which the warrant issued declared that the affiant, a prohibition agent, had entered a saloon on November twenty-fourth, and there saw guests ordering, drinking, and paying for, whisky which was being openly sold. The description of the premises in the warrant was as follows: A club “known as the Theatrical Mechanics Union, or the Theatrical Managers Association and being located on the first and second floоrs of a two story brick building, and being located at 103 Temple Street, New Haven, Connecticut; the entrance to said club room being reached by gоing through the passageway adjacent to 97 Temple Street, entering a courtyard in the rear of said ‘97’ and then ascending four or five iron stairs.”
The first grоund ’of appeal is that the affidavit did not show reasonable ground for the search, and comes down to whether a delay of nineteen days аfter the visit of November twenty-fourth was too long; that is, whether the earlier sales of whisky gave reasonable ground for supposing that there was still whisky to be seized at the time of the raid. We agree that the whisky originally on hand had probably been drunk; if the property to be seized, which the warrant is to “specify” (sections 616, 626, title 18, U. S. Code [18 USCA §§ 616, 626]), must be the identical liquor possessed at the time of the search, the entry was unlawful. We all know, however, that purveyors of liquor replenish their stocks, and it was a fair inference that whoever was maintaining this saloon, would do the same, ’and that there would be whisky on the prеmises on December thirteenth, as there had been on November twenty-fourth, though not the same. Hawker v. Queck,
Our decision in Re Hollywood Cabaret,
As to the description of the place the objection is more plausible. The еvidence showed that along Temple street there was a row of shops, running from numbers ninety-seven to one hundred and three. The building searched was not in this row, but in a courtyard, back of number one hundred and three; to reach it one must go through an alley beside number ninety-seven, and so get access tо the yard on which it faced. To its door an iron flight of four or five stops led up. Thus, the warrant was wrong in so far as it described the building as “at 103 Temple Street,” unless “at” might include a building which had no number, or another in the rear of number one hundred and three; such a construction seems to us too free. In all other rеspects the description was, however, correct. If one followed the warrant one must reach the proper building, about whose identity there could be no doubt, except by an over-scrupulous regard to the letter. Since the description of the premises need only define the search with practical accuracy, the error seems to us negligible; the warrant told the officers where to go and what to enter. Moreover, as the search was to be of the premises, and not of a person, it was not necessary that the owner should be “specified.” Gandreau v. U. S.,
It is doubtful whether the record raises the next point argued, but we shall decide it notwithstanding. The warrant authorized a search by night as well as day, relying upоn a clause in the affidavit alleging that the affiant was “positive” that there was liquor on the premises; but the record does not show when the search took place. It is true that there was a light burning in front of the door, and this may well have been because the sun had set. Again, it may not. Wo know nothing of the сourtyard, or of the weather. For all that appears it may have been overcast, and the court small and dark. The search being valid, if madе during the day, the defendant had to show that it was made at night; so far, we hold that the burden rested upon him. We have already decided that a search by dаy was regular, though the warrant erroneously authorized a search by night. U. S. v. Lepper (D. C.)
The most difficult question which the case raises has not been urged upon us, and we mention it only against the chance that we may be thought to have passed upon it. The warrant authorized only the seizure of whisky, and of аny property used in its manufacture, perhaps a questionable addition. However that may be, no whisky was found, as we have said, and in any event the оfficers seized only beer. Two questions thus arise: F]irst, whether, the beer not being “specified,” the warrant justified its seizure. Marron v. U. S.,
Judgment affirmed.