Davis v. State

• Decision Date: 12 May 1925
• Citation: 203 N.W. 760,187 Wis. 115
• Parties: DAVIS v. STATE.
• Court: Wisconsin Supreme Court

187 Wis. 115

203 N.W. 760

DAVIS

v.STATE.

Supreme Court of Wisconsin.

May 12, 1925.

Error to Circuit Court, Winnebago County; Fred Beglinger, Judge.

Luther B. Davis was convicted of possessing and selling intoxicating liquor, and of selling at retail nonintoxicating liquor, without a license, and he brings error. Reversed and remanded in part, and affirmed in part.

Plaintiff in error (hereinafter called the defendant) was convicted of having in his possession and selling intoxicating liquor, and also of selling at retail nonintoxicating liquor, without a license. It appears that on the 23d day of February, 1924, a search warrant to search the premises of defendant, said premises being located in the outskirts of the city of Oshkosh, was issued by the clerk of the municipal court of Winnebago county, upon complaint of an under sheriff, which complaint was made upon information and belief. Between 11 and 12 o'clock on the night of February 23 the under sheriff, with four deputy sheriffs, proceeded to the premises described in the search warrant. They parked their automobile some distance from the premises, and one of the deputies by the name of Brown entered defendant's place of business. He found a number of men and women sitting in the place, and an ordinary old–fashioned bar back of which was a bartender. He testified that there was no noise or disturbance, and that, so far as he could see, none of the occupants were intoxicated. He proceeded to the bar, asked the defendant if he had any moon; the defendant said, “yes,” and instructed the bartender to serve Brown with a drink of moon. The bartender poured some liquor from a bottle into a glass, gave it to Brown, and Brown laid down a $5 bill. The bartender took the $5 bill, put it in the till, and laid $4.75 in change on the bar in front of Brown. About this time, and before Brown had drank the liquor, a knock came upon the door, which was locked. Immediately the door was broken open, and Brown's four associates entered the place. The defendant, according to Brown's testimony, exclaimed, “Police! Dump it!” and knocked the glass containing the liquor from Brown's hands. Upon the entrance of the officers there followed much excitement, during which time the stove was kicked over. The officers arrested every one in the place and took them to the county jail. Brown testified that after the occupants had been removed from the place, the under sheriff told him to return and make sure that they had gotten every one; that in obedience to such order he returned to the room, and, in an effort to make sure that no one had been left, he opened and looked into the ice box, where he discovered a bottle containing moonshine whisky, which he took with him. At the county jail all persons arrested were questioned except the defendant, his bartender and another man with whom the officers were not acquainted. The bottle of moonshine was sealed and labeled with the signatures of the five officers.

Under date of February 23d the under sheriff returned the search warrant into court with the following certificate:

“I hereby certify that by virtue of the within writ I have duly searched the within premisesand herewith bring into court the evidence, namely, moonshine, and that I duly arrested Luther Davis, the occupant of said building.”

The district attorney filed an information against the defendant, three counts of which charged him with violation of the prohibition laws, with respect to the possession and sale of intoxicating liquors, and one count charging him with the sale of nonintoxicating liquor without a license.

Upon the trial the officers testified that their raid upon the premises was not made by virtue of the search warrant, but that they broke into the building and arrested the occupants because it was a disorderly place. The bottle of moonshine was introduced in evidence over the objection of the defendant, and the court charged the jury:

“If you find from the evidence beyond a reasonable doubt that the said deputy sheriff Brown did not participate in any search ordered or made, by virtue of said search warrant, but seized said bottle of liquor by his own independent action and wholly without reference to such search warrant, then you have the right to consider whether the defendant with knowledge on his part had in his possession on said premises at the time and place alleged in the fifth count the said bottle and the contents thereof.”

The court thus left to the jury the question of whether the officers had secured possession of the bottle of moonshine by virtue of the illegal search warrant, or whether it had come into their possession as an incident to a lawful entry made by them upon the premises of the defendant for the purpose of suppressing a disorderly place. It should be said, also, that the charge made it clear that if the jury found that the bottle was secured pursuant to a search made under and by virtue of the search warrant, they could not consider it as evidence, otherwise it might be so considered.

To review the sentence and judgment of the court pronounced upon the verdict of the jury, the defendant brings this writ of error.

Reilly & O'Brien, of Fond du Lac, for plaintiff in error.

H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and D. K. Allen, Dist. Atty., of Oshkosh, for the State.

OWEN, J. (after stating the facts as above).

[1] The search warrant was issued upon a complaint made upon information and belief. It was issued prior to the decision of this court in State v. Baltes, 183 Wis. 545, 198 N. W. 282, where this court held that a search warrant so issued was void. It is perfectly apparent that in the trial of this case the state endeavored to avoid the consequences of that decision by an attempt to show that the search was not made pursuant to the search warrant, and that the officers entered the premises because it was a...