Commonwealth v. Intoxicating Liquors

110 Mass. 182

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1872
• Status: Published

Opinion

Morton, J.

We are unable to see, in the numerous questions raised in this case, any reason for quashing the proceedings or disturbing the verdict.

1. The complaint sufficiently describes the buildings to be searched and the liquor kept therein. The words “ there situate” in the description of the buildings refer to Worcester, and thus fix the location of the buildings to be in the county of Worcester.

2. It is not necessary that the certificate or jurat annexed to the complaint should contain the allegation that probable cause has been shown for the issuing of the warrant. Although the form provided in section 66 contains such allegation, yet that section provides that it “ shall not be so construed as to prohibit the use of other suitable forms.” St. 1869, c. 415, § 66. If it appears to the court or magistrate to whom the complaint is made that there is probable cause to believe the complaint to be true, and the warrant contains the allegation required by section 46, it is sufficient.

3. The warrant must contain the allegation “that probable cause has been shown for the issuing thereof.” St. 1869, c. 415, § 46. Commonwealth v. Intoxicating Liquors, 105 Mass. 178. The warrant in the case before us contains this allegation. The mode of the allegation differs from the form provided in section 66, and is not to be commended. But the substantive allegation required by the statute is made upon the face of the warrant, and we do not think there is such an essential defect as requires us to quash the warrant.

4. There is a sufficient allegation that the liquors were intended for sale in violation of law. Commonwealth v. Hill, 4 Allen, 593.

5. The premises to be searched are described in the complaint and warrant as “a certain grocery store, dwelling-house, and the cellar under the same, together with the outbuildings contained within the curtilage thereof, there situate, to wit, on the southeasterly corner of Shrewsbury and Cross Streets, and occupied by said Henry, a place of common resort being then kept therein." The claimant contends that the word “ therein ” refers to the outbuildings, that there is no allegation that a place of common resort is kept in the dwelling-house, and therefore that the warrant is fatally defective. But the whole allegation as to a place of common resort may be rejected as surplusage ; it is therefore immaterial whether it refers to the dwelling-house or the outbuildings. The complaint contains the affidavit of one of the complainants required by section 45, that he has reason to believe and does believe that liquor has been sold in the dwelling-house within one month contrary to law. The warrant therefore might issue foz the search of the dwelling-house, though no place of common resort was kept therein. Commonwealth v. Intoxicating Liquors, 108 Mass. 19. The allegation that a place of common resort was kept therein, whether it refers to the dwelling-house or the outbuildings, is an immaterial and superfluous allegation, and does not vitiate the warrant.

6. The notice and the service thereof seem to be sufficient. If „t were otherwise, it would furnish no ground for quashing the proceedings, the claimant having been notified in fact, and having appeared generally. Commonwealth v. Intoxicating Liquors, 97 Mass. 601.

7. The presiding judge properly left it to the jury to determine whether the liquors seized were the liquors described in the complaint. Exceptions overruled.

*

At the same time and by the same counsel were argued

Commonwealth vs. Intoxicating Liquors, Jeremiah Foley, claimant. Same vs. Same, same claimant.

The facts in these two cases were similar in all respects to those of the case reported in the text, except that in the first of the two there was no allegation in the body of the warrant that probable cause for its issue had been shown; but in the teste, just before the signature of the clerk, were these words, “probable cause having been shown for issuing this warrant.”

Morton, J. All the questions raised in these cases are decided in Commonwealth v. Intoxicating Liquors, supra. In the first of these two cases the mode of the allegation in the warrant, that probable cause has been shown for the issuing of the warrant, is more objectionable than in that case, but we io not think that the defect is so vital as to -equire us to quash the proceedings. Exceptions ovemied.