Gamble v. Keyes

• Decision Date: 24 July 1915
• Docket Number: 3760
• Citation: 153 N.W. 888,35 S.D. 644
• Parties: ELIZABETH F. GAMBLE, Plaintiff and appellant, v. E. R. KEYES, Defendant and respondent.
• Court: South Dakota Supreme Court

35 S.D. 644, 153 N.W. 888 (1915)

ELIZABETH F. GAMBLE, Plaintiff and appellant v E. R. KEYES, Defendant and respondent South Dakota Supreme Court Appeal from Circuit Court, Codington County, SD Hon. Carl G. Sherwood, Judge #3760--Affirmed McFarland & Johnson Attorneys for Appellant. Wilbur S. Glass Attorney for Respondent. Opinion filed July 24, 1915

SMITH, J.

This is an appeal from an order of the trial court refusing to strike out certain paragraphs of an answer and from an order overruling a demurrer to such answer. Respondent has raised no question as to the regularity of the appeal, and for that reason we shall consider the merits of the case presented without considering any question as to a double appeal. The complaint alleges that the plaintiff was the owner and in possession of a dwelling house, together with the furniture and other personal property therein, in the town of Henry, Codington county; that on August 17, 1914, the defendants unlawfully and forcibly broke into and entered the said dwelling house, and injured the walls and door thereof, against the will of the plaintiff, and assaulted the plaintiff, pulled and dragged her about, and forced and compelled her to go into the public streets of said town, and put her under restraint, and detained her unlawfully, and restrained her of her liberty without any reason or probable cause therefor, and injured, bruised, lacerated, and sprained plaintiff's arm and shocked her nervous system, so that it was necessary to have the attendance of a physician and surgeon, to her injury and damage, etc.

To this complaint the defendant Keyes, by his separate amended answer, alleged that one Frank Elkins, sheriff of said county, under and by virtue of a warrant of arrest issued on the 15th day of August, 1914, out of the municipal court of the city of Watertown, on the afternoon of the 17th day of August, 1914, at the premises described in the complaint, arrested and took into custody one John Gamble, plaintiff's husband, for examination upon a charge of unlawfully engaging in. the business of selling intoxicating liquors without a license in said county, that a hearing was had in said municipal court on August 18, 1914, wherein it was ordered that said Gamble be held to answer said charge; and that thereafter, on the 8th day of September, 1914, said John Gamble was convicted of said crime and sentenced to pay a fine of $350, which he paid, and was released and discharged; alleged that on the 17th day of August 1914, the record title to the premises described was in said John Gamble, and denied any knowledge or information sufficient to form a belief as to the real ownership of the premises; alleged that at the time of the arrest of said Gamble, on the afternoon of August 17th, the sheriff found upon said premises a large quantity of intoxicating liquors, there kept for unlawful sale, that said sheriff at the time of the arrest of John Gamble, seized and took into his possession a large part of the said intoxicating liquors, to be used as evidence upon examination and trial of said Gamble, that at the time of the arrest and seizure aforesaid the sheriff overlooked and did not take a satchel or valise then in said dwelling house, which contained whisky in bottles, and inadvertently left the same upon said premises, that afterwards, and during the evening of August 17th, and while said warrant of arrest was still in his hands, and before he had returned the same to the municipal court, one Ring, his codefendant, who was a duly appointed, qualified, and acting deputy sheriff of said county, required and commanded this defendant to aid him in securing said satchel or valise with its contents, for the purpose of using the same as evidence as aforesaid, that this defendant, as required and commanded by said deputy sheriff, did accompany him to said premises, and did aid him in securing said whisky to be used for the purposes aforesaid, that, when this defendant and the sheriff reached said premises, they found plaintiff in possession of and exercising full control over the same, that they informed him that they were there for the purpose of obtaining the said whiskey and satchel or valise which the sheriff had overlooked and omitted to take when he arrested said John Gamble, and demanded of plaintiff said satchel and valise and whisky, to be used as evidence, and asked plaintiff for permission to enter said dwelling house for the purpose of obtaining the same, that plaintiff told defendant that the whisky was in the house, and she proposed to keep it, and refused to allow them to enter said dwelling house, that they attempted to enter for the purposes aforesaid, whereupon the plaintiff attacked, assaulted, and beat them, and that it became necessary, in self-defense, to use enough force to prevent injury to the defendants, and that no more force was used than was necessary to prevent such injury, and that the defendants entered said dwelling house and obtained said satchel with the whisky therein contained.

The fourth and fifth paragraphs of the answer allege that the dwelling house was a place in which intoxicating liquors were unlawfully kept and sold, and that the plaintiff was keeping and maintaining said public resort, and by reason thereof had committed a public offense, and was committing a public offense in the presence of these defendants, and further committed a public offense by assaulting and beating this defendant and said deputy sheriff. Plaintiff moved to strike out the fourth and fifth paragraphs as immaterial, which motion was denied. Defendant then demurred to the answer upon the ground that it failed to state facts sufficient to constitute a defense. The court did not err in refusing to strike out these paragraphs. Walter v. Fowler, 85 N.Y. 621; Bradner v. Faulkner, 93 N.Y. 515.

The question presented by the demurrer is whether the defendant and the deputy sheriff were justified in forcibly breaking into and entering the house in possession of and under control of plaintiff, and assaulting the plaintiff for the purpose and under the circumstances alleged in the answer. It is conceded that no criminal charge had been preferred against the plaintiff, and that the defendants were not attempting to arrest her upon any criminal charge; and that no search warrant had been issued authorizing defendants to enter the dwelling house and seize liquors therein, to be used as evidence, or for any other purpose.

Section 11, art. 6, of the Constitution of this state, declares:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized."

The answer alleges and the demurrer admits that the dwelling house in which plaintiff resided was a place used for the unlawful sale of intoxicating liquors, and under the decision of this court in State v. Madison, 23 S.D. 584, 122 N.W. 647, it became a public resort, within the meaning of section 8, c. 173, Laws of 1907, which provides:

"No warrant shall be issued to search a private residence occupied as such unless it or some part of it...