Williams v. State

| Wis. | Mar 8, 1927

Owen, J.

The assignments of error are (1) that the court erred in refusing to discharge the defendants for the reason that there was no competent evidence to sustain the verdict of the jury, the evidence adduced being secured by unlawful search and seizure, in violation of the constitutional rights of the defendants; and (2) that the court erred in its instructions to the jury.

The contention with reference to the first assignment of error is based upon the premise that the evidence furnished by the testimony of the sheriff and his deputy was obtained as the result of an illegal search. It is conceded that the sheriff had no search warrant, and, as the town board had not lawfully granted a license for the sale of non-intoxicating liquors to be consumed on the premises, it follows that the sheriff had no authority to search the premises without a warrant. But the difficulty with the defendants’ contention is that it is based upon a premise which- has no existence in fact. The evidence discloses no search of the premises. It reveals no intention or purpose on the part of the sheriff to search the premises. It appears that upon the entry of the sheriff he saw the defendant Noble Williams seize a bottle from the back bar, dash out of the building and break it upon the ground. This occurred in his sight and view. He merely followed the defendant Williams to the place where he had broken the bottle, discovered liquor on the ground, which he unequivocally testified to be moonshine. It cannot be said that this evidence was secured by him as a result of a search of any kind. It was clearly admissible, whether the premises were or were not licensed for the sale of non-intoxicating ' liquor.

It is further contended that the evidence does not connect the defendant Irving Williams with the possession of the illegal liquor. The evidence does satisfactorily show that Irving Williams was the proprietor of the premises. This is a necessary inference from the fact that a license for the sale of non-intoxicating liquor was issued in his name by the town clerk. Although the town clerk did not testify that Irving Williams made application for the license, this follows as a permissible if not a necessary inference from the fact that the license was issued to him by the town clerk. It appears, therefore, that this bottle of illegal liquor was on the back bar of the defendant Irving Williams’ place of business. This was prima facie evidence of its unlawful possession by Irving Williams. Nelson v. State, 186 Wis. 648, 203 N. W. 343. There was no evidence to rebut the presumption thus arising. The verdict is supported by the evidence.

The court charged the jury as follows: “Whatever you or I may think of the principle or the policy of prohibition, it is our duty as jury and judge to abide by it, and enforce the laws passed for its enforcement, whenever violations of them are shown in prosecutions before us.” This instruction is severely criticised by counsel for defendants because, he says, the instruction in substance made “enforcement officers of jurors,” and that this “deputization of the jurors as enforcement officers was error.” This is not a legitimate construction of the language used by the trial judge. Manifestly the purpose of the language was to impress upon the jurors their duty in the premises. It was merely to remind them that they were not at liberty under their oaths to disregard the provisions of the prohibition laws no matter what their individual views concerning the wisdom thereof might be. The substance of the charge, taken as a whole, was that it was the duty of the jury to convict if the evidence disclosed a violation of the prohibition law no matter whether or not the jurors were in sympathy with the law. Instructions concerning the duties of jurors, many of whom may be performing that function for the first time, are proper and to be commended rather than treated as prejudicial error.

By the Court. — Judgment affirmed.