State v. Fezzette

Savage, J.

The defendant was tried and convicted on a search and seizure process issued under the provisions of section 49, chapter 29 of the Revised Statutes relating to the unlawful keeping or depositing of intoxicating liquors. After conviction, he filed *470 this motion in arrest of judgment, which was overruled, and exceptions were taken.

The statute in question provides that "if any person competent to be a witness in civil suits, makes sworn complaint before any judge of a municipal or police court or trial justice, that he believes that intoxicating liquors are unlawfully kept or deposited in any place in the State'by any person, and that the same are intended for sale within the State in violation of law, such magistrate shall issue his warrant, directed to any officer having power to serve criminal process, commanding him to search the premises described and specially designated in such complaint and warrant, and if said liquors are there found to seize the same, with the vessels in which they are contained.”

In the complaint in this case the complainant alleged that he believed that on a day named, "at said Bangor, intoxicating liquors were and still are kept and deposited by Amos Fezzette of Etna in said county, in a valise in the possession of the said Fezzette in said Bangor.” The prayer in the complaint was "that due process be issued to search the premises hereinbefore mentioned where said liquors are believed tobe deposited.” And the warrant commanded the officer "to enter the premises described and specially designated in the foregoing complaint . . . which is expressly referred to as a part of this warrant.”

The contention of the defendant is that a "valise in the possession of” a person is not a "place,” within the meaning of that word in the statute, and hence that the complaint fails to charge the statutory offense. We think this contention must be upheld.

The constitution of Maine, Art. I, sect. 5, provides that no warrant to search any place, or seize any person or thing shall issue "without a special designation of the place to be searched.” The statute above referred to requires that the "premises” to be searched shall be described and specially designated in 'such complaint and warrant.” The form of warrant found in section 72 of the same chapter is, at least, a legislative interpretation of the meaning of the word "place” in section 49. It commands the officer to "enter” *471 the place or premises before named and "therein” to search for said liquors.

While the word place has several meanings, it ordinarily has reference to locality. And it is obvious that in a statute providing for a search and seizure not only does the word place refer to locality, but under the constitutional provision above named, the locality must be definite, certain and fixed. It must be capable of being described and specially designated. It must be so definite as to direct the officer not only what, but where, he is to search. The warrant commands him to "enter” a place. It would be a perversion of terms to say that he is to "enter,” if he can find it, the valise of a "peripatetic rumseller,” as such a one is characterized by the court in State v. Grames, 68 Maine, 418. As we have seen, in the same section, the "place” is also referred to as the "premises described.” The word "premises” signifies a distinct and definite locality. It may mean a room, or .a shop, .or a building, or a definite area, but in either case, the locality is fixed. Otherwise the use of the word would be misapplied.

We cannot extend,the statute by construction beyond the plain signification of the language used. We think it is clear that the word "place” in the statute cannot by any reasonable interpretation be construed as broad enough to cover the search for and seizure of liquors in a valise alleged merely to be in the possession of the defendant, but not alleged to be in any definite and fixed locality or place.

Doubtless one who peddles intoxicating liquors from a valise carried about by him from place to place as he may find customers is punishable for his single sales or as a common seller of intoxicating liquors. But under the existing statute, the search and seizure process will not lie against him for unlawfully keeping such liquors upon the mere allegation that they are contained in a valise in his possession.

Exceptions sustained. Judgment arrested- Complaint quashed.