City of Janesville v. Heiser
| Decision Date | 06 February 1933 |
| Parties | CITY OF JANESVILLE v. HEISER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Rock County; George Grimm, Circuit Judge.
Theodore Heiser was convicted of possessing intoxicating liquor fit for beverage purposes in violation of an ordinance of the City of Janesville, and he appeals.--[By Editorial Staff.]
Affirmed.
The appellant, hereafter called the defendant, was, on the 5th day of August, 1931, found guilty of having on the 13th day of April, 1931, violated section 3 of Ordinance No. 186 of the general ordinances of the city of Janesville entitled “An ordinance to revise, consolidate and codify the General Ordinances of the City of Janesville,” in that he, the said Theodore Heiser, did on the date aforesaid at said city at the premises occupied by him at 103 East State street unlawfully and illegally possess intoxicating liquor fit for beverage purposes. Complaint was first made to the municipal court of Janesville. Upon trial had in said court the defendant was found guilty as charged in the complaint and it was adjudged that he pay a fine and also be imprisoned in the county jail of Rock county. The defendant thereupon appealed to the circuit court for Rock county. Trial was there had before the court without a jury (trial by jury having been waived). The circuit court found the defendant guilty as charged in the complaint and adjudged that he pay a fine of $600 and be imprisoned in the county jail of Rock county for not to exceed two months, and that in case of default in the payment of the fine he should be further imprisoned in said jail for not to exceed three months. From that judgment, the defendant appealed.
Dan W. McCluskey, of Janesville, for appellant.
Robert J. Cunningham, City Atty., of Janesville, for respondent.
The complaint charges that the defendant unlawfully and illegally possessed intoxicating liquor fit for beverage purposes in violation of section 3 of ordinance 186 of the general ordinances of the city of Janesville, which is as follows:
That section prohibits the possession of intoxicating liquor by any person other than in his private dwelling used exclusively as such. The first question before us is whether the evidence properly adduced upon the trial is sufficient to sustain the finding and judgment of the trial court.
Prior to the making of the complaint herein a complaint for a search warrant was made to the judge of the municipal court of the city of Janesville by the chief of police. The complaint for a search warrant recites that it is made upon “information and belief.” However, it appears from the record made by the judge at the time the complaint for a search warrant was made that the chief of police and also another witness appeared before the magistrate, were sworn and examined. The witness testified that he had theretofore and within thirty-six hours purchased from the defendant, in the premises sought to be searched, a pint of moonshine liquor. The testimony was taken in shorthand, was thereafter transcribed and filed. The liquor purchased was exhibited to the magistrate and opinion testimony as to its nature given. A search warrant was issued pursuant to the provisions of section 7 of said Ordinance No. 186. A search of defendant's premises followed and a considerable quantity of liquor described as gin, alcohol, and home-brew was seized. Upon the opening of the trial in the municipal court the defendant made timely motion to suppress the evidence seized under the search warrant, on the ground that the search was illegal and in violation of defendant's constitutional rights. That motion was overruled and the evidence received.
[1] Upon appeal to the circuit court and at the opening of the trial, counsel for the defendant in response to the following question asked by the court, “What are the facts in dispute in this case?” stated: “I am willing to stipulate that Mr. Heiser is the owner of this liquor; I am willing to admit that it contained more than one-half of one per cent and that he was in possession of the property at the time of the raid and of the liquor and that the copy of the city ordinance is a true copy of the city ordinance passed by the city of Janesville.”
The court thereupon stated: “It is conceded by the defense that the raid was made; that he owned the home in which the raid was made and was also in possession of both the home and the liquor taken on the raid.”
Defendant's attorney replied: “That is conceded.”
Defendant's attorney thereupon made a motion to suppress the evidence already stipulated in the case on the ground that the search warrant was illegally issued, and for the return of the property. The court thereupon stated:
It seems clear to us that after it was stipulated and conceded that the defendant owned the liquor, that it contained more than one-half of 1 per cent. and that he was in possession of it in his home at the time the raid was made, the question as to whether the search was illegal because of the invalidity of section 7 of said ordinance which purports to authorize the issuing of a search warrant, or because the search warrant was improperly and illegally issued, became quite immaterial.
[2] The complaint charged the unlawful and illegal possession of intoxicating liquor. The stipulation hereinbefore referred to plainly conceded that the defendant was the owner of the liquor (evidently referring to the liquor seized and then in court); that it contained more than one-half of 1 per cent. (evidently of alcohol); that he was in...
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