People v. Burt

210 N.W. 97, 236 Mich. 62, 1926 Mich. LEXIS 798

• Court: Michigan Supreme Court
• Decided: July 22, 1926
• Docket: Docket No. 173.
• Status: Published

Opinions

Defendant was convicted of a violation of the prohibition law and reviews his conviction on exceptions before sentence. The intoxicating liquor introduced in evidence was secured in a search of defendant's home on a search warrant. Two questions are presented for review. Defendant's counsel insisted, and here insists, that it was incumbent on the people to prove on the trial in order to make out a case that defendant's home was either a place of public resort, or that it was used for the unlawful manufacture or sale of intoxicating liquors and that unless one of these conditions was established by proofs on the trial the liquor could not be received in evidence, and defendant could not be convicted. The other objection is that the prohibition act is unconstitutional.

Section 30, Act No. 336, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 7079 [30]), in part provides as follows:

"No warrant shall be issued to search a private dwelling occupied as such unless some part of it is used as a store or shop, hotel or boarding house, or for any other purpose than a private residence, or unless such private dwelling is a place of public resort, or unless it is being used for the unlawful manufacture or sale of intoxicating liquor."

This court held in People v. Marxhausen, 204 Mich. 559 (3 A.L.R. 1505), that it was not open to defendant upon the trial to collaterally inquire into the matter of how the liquor offered in evidence was obtained. This holding has been followed in cases too numerous to cite. It was there pointed out that proper practice required a motion to return the liquor unlawfully seized before the trial. At some stage in the proceedings one whose home has been invaded in violation of section 30, Act No. 336, Pub. Acts 1921, should have an opportunity to be heard, otherwise the statute is without purpose or avail. The affidavit gives the court jurisdiction to issue the writ (People v. Czckay, 218 Mich. 660), and the officer would doubtless be protected by his warrant if it is fair on its face. If the affidavit for the search warrant is defective as a matter of law defendant should raise the question preliminary to the trial by motion to suppress. If the affidavit for the search warrant is defective as matter of fact (i. e. is false), defendant should likewise raise the question preliminary to the trial by motion to suppress. A motion, in effect one to suppress, was made in the instant case; it seems to have been based on the evidence taken before the examining magistrate. But that evidence is not a part of the record and is not before us. The affidavit upon which the search warrant was issued is made a part of the record; it is sufficient as matter of law. In the absence of evidence contradicting it, the trial judge did not err in overruling the motion to suppress. Upon this main question involved in this case, see Commonwealth v. Intoxicating Liquors, 142 Mass. 470 (8 N.E. 421);Steele v. United States, 267 U.S. 498, 505 (45 Sup. Ct. 414,417).

The constitutional question raised by defendant's counsel is ruled by People v. Stambosva, 210 Mich. 436, contrary to counsel's contention.

SHARPE, STEERE, WIEST, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.

Justice MOORE took no part in this decision.