Commonwealth v. Courtney

• Decision Date: 09 January 1923
• Citation: 138 N.E. 16,243 Mass. 363
• Parties: COMMONWEALTH v. COURTNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 363

138 N.E. 16

COMMONWEALTH

v.COURTNEY.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 9, 1923.

Exceptions from Superior Criminal Court, Middlesex County; Frederick Lawton, Judge.

James Countney was found guilty of keeping and exposing liquor for sale and maintaining a liquor nuisance, and he brings exceptions. Exceptions overruled.

Defendant's exceptions were to the refusal, before trial, of his petition for the return of property illegally seized, to the admission, on the trial, of liquor over his objection that it was obtained as the result of an illegal seizure, and to the exclusion of evidence offered to show an illegal seizure.

1. Searches and seizures k7-Acts by officer holding warrant illegal only so far as unauthorized.

That an officer making a search for intoxicating liquors under a search warrant did acts not authorized by the warrant, as by destroying and seizing property other than intoxicating liquor, did not taint with extraneous illegality all that was done, and his acts were illegal only to the extent that they were not authorized by the warrant.

2. Criminal law k395-Liquors illegally seized admissible in evidence.

Intoxicating liquor was not inadmissible in evidence because obtained on a search without warrant or color of authority.

Endicott P. Saltonstall, Dist. Atty., of Boston, and Raoul H. Beaudreau, Asst. Dist. Atty., of Marlboro, for the Commonwealth.

James P. Brennan, of Boston, for defendant.

RUGG, C. J.

This complaint charges the defendant in one count with keeping and exposing intoxicating liquor for sale and in another count with maintaining a liquor nuisance. The defendant before the trial filed a petition for the return of property illegally seized. He there alleged that certain police officers on the date named in the complaint, being armed with a search warrant, entered his premises for the ostensible purpose of making search and seizure of intoxicating liquors, but in reality willfully to destroy property of the defendant, and that in execution of that real purpose, destroyed and seized property not intoxicating liquor. The prayer of the petition was that the court order that search and seizure were unreasonable, that the property seized be returned to him and not used against him as evidence. This petition was denied rightly.

[1] This is not an action against the officer and hence his liability need not be considered. There was in the petition no averment that the warrant did not authorize the seizure of the intoxicating liquor. The...