State v. Bradley

Wiswell, C. J.

A deputy seized certain intoxicating liquors in a dAvelling-house, Avithout a Avarrant. Upon the next day, and Avithin tAventy-four hours thereafter, he made complaint to a municipal court having jurisdiction and obtained a Avarrant against the, liquors previously taken, and then held by him, until he could obtain the Avarrant. The respondent Avas tried in the municipal court upon the charge of keeping these intoxicating liquors in the place described in the complaint, intended for unlawful sale in this state. He Avas found guilty by that court and appealed to the Superior Court in that county. At the trial in the latter court, Avliere he Avas also found guilty by a jury, he took exceptions to certain instructions of the presiding justice, to his refusal to give certain requested instructions and to the overruling of his motion in arrest of judgment.

It appears from the bill of exceptions, that the complainant, together AA’ith another officer, made tAA'o visits to the dAvelling-liouse ou the night preceding the issuance of the AArarrant; that upon one of these visits certain of the intoxicating liquors mentioned in the complaint and Avarrant and in the officer’s return upon the AArarrant Avere *124 taken from the person of the defendant, Avhile the other liquors mentioned in.the complaint and in the return upon the warrant were found in the place described in the complaint and taken by them. For this reason, the respondent requested the presiding justice to instruct the jury that if the return was made of two seizures, the complaint and warrant became invalid if not amended, and that the warrant was unauthorized, illegal and void as a matter of law. The court refused to give these instructions, but did instruct the jury as folloAvs: “Now as I say, even though other liquors may have been included, if the return covers the liquors that were seized on the first visit, the return is sufficient, because the greater includes the less.” The liquors seized on the first visit, referred to in the foregoing instruction, were those found upon the premises.

The respondent was tried upon the charge contained in the complaint of keeping intoxicating liquors in the place described in the complaint, intended for unlawful sale in this state. If some of the liquors mentioned in the complaint and warrant Avere found and seized in the place therein described, and Avere kept there by the defendant intended for unlaAvful sale, he aatis guilty of the charge. It makes no difference that other liquors Avere described in the complaint, or Avere seized by the officer and included in his return, so filias this proceeding is concerned, provided that some of the liquors mentioned in the complaint and Avarrant Avere found and seized, or had been previously found and seized by the officer, before obtaining the warrant, in the place described in the complaint. The rulings therefore in this respect Airere correct.

In the defendant’s argument it is urged that a search without a Avarrant is in violation of our constitution. But the case does not show that any search Avas made. That portion of B. S., c. 27, § 39, Avhich provides that, “in all cases Avliere an officer may seize intoxicating liquors or the vessels containing them, upon a Avarrant, he may seize the same without a Avarrant, and keep them in some safe place for a reasonable time until he can procure such a Avarrant,” gives no neAV or additional authority to search premises. It merely authorizes a seizure Avithout a AA^arrant AA'hen such seizure can be made Avithout the unreasonable search Avhicli is prohibited by the *125 constitution. To this extent the statute is constitutional and lias been frequently upheld by this court. State v. McCann, 59 Maine, 383; State v. LeClair, 86 Maine, 522.

Again, it is argued that the respondent was arrested at the time of the seizure and before the warrant was obtained. If this was so, and if such arrest was illegal, it can in no way affect the validity of the complaint and warrant, and it cannot be taken advantage of by a respondent charged with having intoxicating liquors in his possession for an unlawful purpose, either before or after conviction. There was no reason why the defendant’s motion in arrest of judgment should have been sustained.

Jivceptions overruled.