State v. McCann

Appleton, C. J.

By c. 33, § 12, approved March 25, 1858, “ no person shall deposit or have in his possession any intoxicating liquors, with intent to sell the same in this State, in violation of law, or with intent that the same shall be so sold by any person, or to aid or assist any person in such sale thereof.”

By § 14, provision is made for the issuing warrants for the search and seizure of intoxicating liquors, unlawfully kept and deposited, and for the arrest “ of the person so, as aforesaid, keeping said liquors,” upon whom a prescribed penalty is imposed if found guilty.

By § 15, provision is made for enforcing a forfeiture of the liquors seized.

By c. 48, approved March 27, 1858, forms are given “ which *385 shall be deemed sufficient in law, for all cases arising under the aforesaid act,” c. 33. • It does not negative, other forms, which may be appropriate and which set forth all the necessary facts to constitute the offense charged.

By c. 125, § 1, approved 11th March, 1870, only one person is necessary to make the complaint for a warrant of search and seizure instead of three as was required by c. 33, § 14, of the acts of 1858.

By § 2, “ In all cases where now, by any of the provisions of said chapter (c. 33) or any acts additional thereto, or amendatory thereof, an officer is authorized to seize intoxicating liquors, or the vessels containing them, by virtue of a warrant therefor, he may seize the same without a warrant, and keep them in some safe place for a reasonable time until he can procure such warrant.”

By this statute, no new or additional authority is given to search. It is only to seize. It is to seize what the officer may be enabled to seize, without the unreasonable searches prohibited by the constitution. The act, to this extent, is constitutional. Jones v. Root, 6 Gray, 435 ; Mason v. Lothrop, 7 Gray, 355 .

The change of law created by the statute of 1870, c. 125, requires a corresponding change in the forms of the processes to be issued by virtue of its provisions and in connection with those of preceding statutes. Thus the complaint may be made by one instead of three. So, as the statute provides for a seizure without and before the issuing of a warrant, the statement in accordance with the facts is proper. The offense prohibited by the statute was consummated, if intoxicating liquors were unlawfully kept and deposited by the respondent on the 30th April. The allegation of the unlawful keeping on that day was in accordance with the fact. The complaint on 2d May was for a past offense consummated on 30th April and should not have alleged that the liquors were “ still kept ” and deposited on May 2d, when they had been previously seized and were then in the custody of an officer and not in that of the defendant. The words “ and still are,” were properly omitted in the complaint.

*386 As the complaint alleged a past offense committed on 80th April, 1870, so the question proposed related to the time of its commission, and was proper. Neither the validity or the correctness of the return were then under consideration. The evidence was not offered to contradict the return, but to sustain the complaint on which the defendant was being tried.

The evidence does not show any unlawful search, nor indeed any search. It simply proves a seizure, which we are not to presume illegal, without evidence.

, These are the only questions raised by the exceptions, and as to these, the rulings of the presiding justice were correct.

Exceptions overruled.

CutxiNG, Kent, DickeRSON, and Danfouth, JJ., concurred.