State v. Malarky

MR. JUSTICE COOPER

delivered the opinion of the court.

The provisions of Chapter 143, Laws of 1917, page 239, commonly known as the Enforcement Act, furnish the basis for this proceeding. Section 7 thereof authorizes the court, upon á proper showing, to issue a search-warrant directing the seizure of all intoxicating liquors found within the building or premises therein described.

*135 The facts are these; On the thirty-first day of January, 1919, as a foundation for a search-warrant, a complaint was sworn [1] to and filed by one of the prosecuting officers of Silver Bow county, alleging that there was probable cause to believe that Andrew T. Malarky was possessed of and had deposited “in that certain building situate at and numbered 601 North Main Street, Butte, Silver Bow County, Montana,” intoxicating liquors, which Malarky intended for sale, exchange, gift, barter or other disposition in violation of law, and praying that a warrant issue for a search of the premises and the seizure of such intoxicating liquors, together with the vessels containing the same and all implements, furniture and other articles used or kept in connection with its sale. In compliance therewith a search-warrant was issued by the district court containing a true copy of the complaint, commanding any peace officer of that county, with the necessary and proper assistants, to thoroughly search the premises described in the complaint, and to seize any 'intoxicating liquors found therein, together with the vessels containing the same and all implements, furniture, fixtures and other articles used in connection therewith. In compliance with the warrant, as shown by the return thereon, John F. Melia, a deputy constable for South Butte township, at No. 603 North Main Street in the city of Butte, seized a quantity of candy, tobacco, cigars, soft drinks, three empty demijohns with a trace of whisky therein, and one bottle containing four ounces and another six ounces of whisky. Thereafter Andrew T. Malarky filed a paper claiming the property as his own, demanding its return and declaring that none of the articles were used or intended to be used with intent to violate any of the prohibition laws of the state of Montana. The cause was tried by the court and at the close of the testimony in behalf of the state the court dismissed the proceeding and directed the return of the property to the claimant. The appeal is from the judgment.

As stated above, the search-warrant contains a copy of the complaint and commands the officer to thoroughly search the premises described in the complaint.

*136 Error by tbe trial court is urged in granting tbe motion; in dismissing tbe action and in sustaining tbe following motion of claimant to strike: “We (counsel for claimant) move to strike out all tbe testimony of this witness with reference to tbe search-warrant dated February 4, 1919, introduced in this case as an exhibit, for the reason that it appears from the testimony of this witness that that property was seized in a building described and numbered as 603 North Main Street, Butte, Montana.”

The sole question for decision is whether the premises searched ■and in which the property described in the officer’s return was found were the same premises described in the complaint and search-warrant. The district court granted the motion to dismiss and gave judgment against the state upon the ground of variance between the search-warrant and the proof. The officer to whom the search-warrant was delivered and to whom directions were given to search “that certain building situate at and numbered 601 North Main Street, Butte,’’.upon the trial, testified!: “There is no 601 North Main Street. * * * The only number I saw on the building was 603. # * * I entered the building on Woolman Street. There are three entrances from the outside that I know of to the building.”

Assuming, as we. are bound to do under the settled rule of this court, that all the evidence tending to prove plaintiff’s case is true, it is apparent that the proof failed to establish the fact that the premises actually searched were the premises described in the search-warrant. As was observed in State v. Guthrie, 90 Me. 448 , 38 Atl. 368 , a search-warrant “is a sharp and heavy police weapon to be used carefully lest it wound the security or liberty of the citizen.” In State ex rel. Streit v. Justice Court, 45 Mont. 375 , 48 L. R. A. (n. s.) 156, 123 Pac. 405 , it is said: “The search-warrant was not known to the early common law. It grew up by ‘imperceptible practice’ and was first confined to the ease of stolen goods. Its legality was denied by Lord Coke. (Entick v. Carrington, 19 How. St. Tr. 1030.) The use of it was subsequently extended. (2 Chitty’s General Practice, p. 180.) Because it is a process subject to much abuse, *137 it has in this country generally been limited in its use by constitutional restrictions. (Const., sec. 7, Art. III; Robinson v. Richardson, 13 Gray (Mass.), 454 .)”

A clear elaboration of the forms to be observed in proceeding under this act will be.found in the opinion of the Chief Justice in the very recent case of State ex rel. Prato v. District Court, 55 Mont. 560 , 179 Pac. 479 .

The authority of a searching officer, susceptible as it is of [2] great abuse, and affecting the very essence of personal security, is not to be extended by construction to any case not clearly covered by the statute. (State ex rel. Streit v. Justice Court, supra.) In the view of the trial court, the departure was fatal to the validity of the proceedings, and in this we agree.

The judgment appealed from is therefore affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Matthews concur.