State v. Connolly

Emery, J.

After a verdict of guilty in this prosecution for the unlawful keeping of intoxicating liquors, the respondent moves for an arrest of judgment upon several grounds.

I. The complaint contained no allegation that intoxicating liquors were concealed by the respondent about his person. The warrant however contained this claim in parenthesis (“or if you shall have reason to believe that the said Connolly has concealed said liquors about his person you are hereby commanded to search him and if said liquors are found upon his person to arrest him.”) The officer serving the warrant did not search the respondent, but did search the described premises and found intoxicating liquors, and thereupon arrested him as commanded by another clause in the warrant. ' The respondent contends that, although the above clause in the warrant was not executed nor in any way made use of, nevertheless its presence in the warrant vitiated the whole warrant and all proceedings under it. The same contention was made, considered and overruled in State v. Chartrand, 86 Maine, 547. At the request of the respondent. we have re-examined the question in the light of his argument and the (ases cited by him, but we find no sufficient reason for doubting the correctness of the decision in State v. Chartrand. That decision is accordingly affirmed.

II. The officer serving the warrant wrote out upon the usual blank on the back of the warrant his return of his doings in searching the described premises, and in finding and seizing the intoxicating liquors described, and also noted his fees for service, including the arrest of the respondent. This particular return he did not then sign as a separate return. He also made upon a separate paper his return in full of the arrest of the respondent, and signed it. This paper he attached to the back of the warrant as his return, and then returned the warrant into the court. This omission of the signature of the officer to that part of his return relating to the seizure of the *408 liquors is specified in the motion as a sufficient objection to rendering judgment.

We think the objection, if of any validity at any stage of the proceedings, is not valid when first made after verdict. The complaint and warrant were sufficient in substance and form. The arrest itself was legal (intoxicating liquors having been found), for no return of the finding of intoxicating liquors was needed to be made until after the arrest was made and the warrant returnable. State v. Stevens, 47 Maine, 357. The return of the arrest itself was regular and complete. The respondent yielded to the arrest without objection. He was properly before the court which had jurisdiction of the offense and of the process. He pleaded to the complaint and put himself upon trial. He went to trial and verdict by a jury, without any objection to the acts or omissions of the officer or to his return of his doings. He thereby waived all irregularities in the service of the warrant, or in the return of service. The right to arrest the respondent depended, not upon the officer’s return, but upon the fact that intoxicating liquors were found; and that fact was to be proved before the court by competent evidence under oath and not by the officer’s return on the warrant. State v. Stevens, supra. In Com. v. Gregory, 7 Gray, 498 , the respondent after verdict moved in arrest of judgment because the warrant had been served by a disqualified officer. The court held this to be practically a motion to dismiss the case for want of sufficient service of the process, and held that it was made too late. The court said “A motion to dismiss any action for want of due service, must be made before a general appearance in the action. This will certainly apply as strongly in criminal cases as in civil cases. If the party appears and pleads to the complaint or indictment, he is fully before the court and the court has jurisdiction of the case. After a verdict has been returned, it is quite too late to interpose a motion in arrest founded upon the want of proper service of the warrant.” If an objection to a defect in the service of the warrant cannot be entertained after verdict, then a fortiori an objection, not to the service, but only to the return of service, cannot be. The court after verdict allowed the officer to supply the omission of his signature on the original warrant, and then allowed a new *409 copy of the complaint, warrant and return as amended to be filed. To this the respondent excepted, but his exceptions become immaterial upon our holding as above that the omission of the signature, first objected to after verdict, is not cause for arresting judgment.

The foregoing disposes of 'all the objections to rendering judgment, which were raised or noticed in the respondent’s argument.

Exceptions overruled. Judgment for the state.