People v. Stewart

• Citation: 232 Mich. 670,206 N.W. 337
• Decision Date: 22 December 1925
• Docket Number: No. 135,Oct. Term.,135
• Parties: PEOPLE v. STEWART.
• Court: Supreme Court of Michigan

232 Mich. 670

206 N.W. 337

PEOPLE

v.STEWART.

No. 135, Oct. Term.

Supreme Court of Michigan.

Dec. 22, 1925.

Error to Circuit Court, Shiawassee County; Joseph H. Collins, Judge.

Jay Stewart was convicted of possessing intoxicating liquor, and he brings error. Reversed, and defendant discharged.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. John R. Clarke, of Flint, for appellant.

Leon F. Miner, Pros. Atty., of Owosso, for the People.

CLARK, J.

Defendant was convicted of possessing intoxicating liquor. On error he contends that he was arrested unlawfully; that the officer, without warrant, had no reasonable and probable cause to believe that a felony had been or was being committed by him; and that the motion to quash, to suppress, and for discharge, timely made, ought not to have been overruled.

Of the arrest the officer testified:

‘About a month ago I saw Mr. Stewart upon the streets of Owosso. He came out of the National Hotel, and went south on South Washington street, and went down as far as No. 206, if I am not mistaken. That would be in the second block, in front of a little restaurant and soft drink parlor, as they call them. He was standing in the doorway. I arrested the gentleman, thinking he had some liquor on him. A man named Walter Nimphie was also standing in this same doorway. I think this was on the 11th day of April, 1925. I was standing just south of the door on Washington street when he came out of the National Hotel. We had been watching him for quite a while.

‘Q. Were you there that night, standing where you were, for the purpose of looking and watching for Mr. Stewart? A. Not any more so than any one else.

‘Q. After he came out of the hotel, what, if anything, did you do? A. It looked to me as though there was something that wasn't just right, which we often form ideas that are not correct. * * * I told Mr. Stewart he could consider himself under arrest. He stood there a minute; then we started to the jail, or the city hall.

‘Q. What was your object of following him on this particular night? A. Well, sir, I followed him because I thought that he was handling liquor.

‘Q. You thought he was handling liquor? A. Yes, sir. He had been under our eyes for quite a while.

‘Q. What information did you have at that particular time, at the time you started to follow him, which led you to believe that he had liquor? A. His actions.

‘Q. Why did you allow him to proceed a distance of a block and a half before you made the arrest? A. I wanted to satisfy myself, in my own mind, that he had it.

‘Q. Did you have a warrant for his arrest? A. No, sir.

‘Q. Had any complaint been made to you in writing at that time? A. No, sir.

‘Q. Had any complaint been given to you orally regarding his actions on this particular day and night, or this nighttime? A. Please state that again.

‘(Question read.) A. Orally, what do you mean?

‘The Court: By word of mouth, spoken to you? A. May I have the question once more?

‘(Question read.) A. No, sir.

‘Q. And you didn't have any information or complaint, either written or oral, at that particular time? A. No, sir.

‘Q. Then this idea that you had about Mr. Stewart dealing with liquor in any way at all was purely a guess on your part, wasn't it? A. A guess. We had had complaints coming in.

‘Q. I am talking about this particular night. A. Yes, sir.

‘Q. What did he do that led you to believe that he had liquor? A. He came out and walked down the street. I see another party walking down the street ahead of him.

‘Q. How far was this party ahead of Mr. Stewart? A. Well, that would be very hard for me to give that distance.

‘Q. That is, he was on the same side of the street? A. Yes, sir.

‘Q. And they both were walking on the sidewalk? A. Yes, sir.

‘Q. Would that set of facts justify you at any time, a man following another man down the street, or another man preceding him, that there was liquor involved in any way? A. It looked very suspicious to me.

‘Q. What were the grounds that you based your suspicion on as to his having liquor? A. The grounds would be that he was going down that way, and we had him under our supervision. We had been watching this man for quite a while, and watching every move that he made.

‘Q. There are other men that you watch, too, aren't there? A. Yes, sir.

‘Q. Would the fact that he should come out of a place of business at 10:20 at night, and follow another man down the street, raise the same presumption that one of them had liquor? A. Yes, sir. It would to me, if they were watching him.

‘Q. These words you used, I believe; on your direct examination, I think you used these words, possibly you recall them, ‘it looked to me as though there was something wrong and I followed.’ What I am attempting to get at, Officer, what was the particular thing that looked wrong that caused you to follow him? A. Just his general actions.

‘Q. Just his actions? A. Yes, sir; coming out of the hotel.

‘Q. What did his actions consist of, that aroused your suspicion? A. Because we had watched this man's step continuously.

‘Q. Was he intoxicated this evening? A. Not to my knowledge, he wasn't.

‘Q. You were near enough to place him under arrest? A. Yes, sir.

‘Q. At the time you placed him under arrest, did you put handcuffs on him. A. No, sir.

‘Q. How near were you to him? A. I was right up, so I could touch him.

‘Q. Did you detect the odor of liquor on his breath? A. No, sir; I did not.

‘Q. Were you near enough so you could have done so? A. Yes, sir.

‘Q. Officer, why was it that you waited the length of time that you did to arrest Mr. Stewart if you had grounds to base a suspicion on at the time he left the National Hotel? A. I wanted to watch him to see what he was doing.

‘Q. Did you see him do anything up to the time you made the arrest? A. No, sir.’

This testimony does not...