Hiller v. State

• Decision Date: 06 April 1926
• Citation: 208 N.W. 260,190 Wis. 369
• Parties: HILLER v. STATE.
• Court: Wisconsin Supreme Court

190 Wis. 369

208 N.W. 260

HILLER

v.STATE.^a1

Supreme Court of Wisconsin.

April 6, 1926.

Error to Circuit Court, Sauk County; E. Ray Stevens, Judge.

Earl Hiller was convicted of violating the liquor law under St. 1925, § 165.01, subd. 32 (d), and he brings error. Affirmed.F. R. Bentley, of Madison, and J. W. Frenz, of Baraboo, for plaintiff in error.

H. L. Ekern, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

ROSENBERRY, J.

The plaintiff in error (hereinafter designated the defendant) was convicted upon the third and fourth counts of the information, which were as follows:

“And as and for a third count to this information, * * * that the said defendant, Earl Hiller did on the 29th day of August, 1925, at the town of Delton, Sauk county, Wis., unlawfully have in his possession unlawfully manufactured intoxicating liquors, that the said liquors were then and there possessed for beverage and not for nonbeverage or sacramental purposes, and were then and there possessed without any permit of any kind whatsoever, and that said liquors did then and there contain more than one-half of 1 per cent. of alcohol by volume.

And as for a fourth count to this information, * * * the said defendant, Earl Hiller, did at the town of Delton, Sauk county, Wis., on the 29th day of August, 1925, at a time when the sheriff of Sauk county came with a search warrant to his premises to search the same for intoxicating liquors, and at a time when the sheriff of Sauk county was attempting to enter the dwelling upon said premises and make search, secrete and destroy fluids, that the said fluids so secreted and destroyed with the said intoxicating liquors described in the third count of this information and that said fluids were then and there destroyed and secreted by the said defendant for the purpose of preventing the seizure of the same by the sheriff of Sauk county.”

The defendant was sentenced to 60 days in the house of correction at Milwaukee, and brings error to review the judgment. The following errors are assigned:

“I. The court erred in refusing to grant defendant's motion to quash the third count of the information.

II. The search warrant was improperly issued by the justice because there was no showing of probable cause to believe that the dwelling of the defendant was being used as a place of sale, or a place for the unlawful possession for sale of liquor, or place for manufacture of liquor for sale.

III. The search warrant was invalid at the time of its attempted execution by the officers, for the reason that it was not served promptly after its issuance by the justice.

IV. The search warrant was invalid, for the reason that it was issued before the alleged offense had been committed.

V. The search conducted by the officers was unlawful, for the reason that they broke and entered the dwelling of the defendant without first being denied permission to enter.

VI. The search conducted by the officers was unlawful, for the reason that, at the time they broke and entered the dwelling of the defendant, they did not have in their physical possession the search warrant.

VII. There is no proof in the case that the alcohol taken in the raid of August 29th was ‘unlawfully manufactured intoxicating liquors' as alleged in the information.

VIII. There is no proof in the case ‘that the said liquors were then and there possessed for beverage and not nonbeverage or sacramental purposes and were then and there possessed without any permit of any kind whatsoever’ as alleged in the information.

IX. There is no proof in the case that the defendant did secrete or destroy fluids on premises ‘being searched.’ ”

[1] 1. The third count charges that the defendant did “unlawfully have in his possession unlawfully manufactured intoxicating liquors.” It is claimed that this language is insufficient to charge any offense under the Severson Act (St. 1925, § 165.01). It certainly cannot be commended as a model pleading. It attempts to charge an offense under subdivision (d) of subsection (32) of section 165.01, Stats. of 1925. The prohibition contained in that section, so far as relevant, is as follows:

“The possession of any mash from which distilled liquor is customarily made, or the possession of any privately manufactured distilled liquors without such permit is hereby prohibited.”

Under this section it is held that the possession of malt or vinous liquors does not constitute an offense. Endish v. State (Wis.) 205 N. W. 822. Unlawfully manufactured intoxicating liquor could therefore not include malt or vinous liquors, and could refer only to distilled liquors. Unlawfully manufactured intoxicating liquor could be nothing but liquor distilled without a permit and therefore liquor privately distilled. If it were manufactured under government permit, it would not be unlawfully manufactured. Therefore it must be held that the complaint in legal effect charged the defendant with unlawfully having in his possession privately distilled intoxicating liquor.

If pleaders would regard the provisions of section 355.33, and, where an offense has been created by statute, describe the offense in the words of the statute, a great deal of difficulty would be avoided. While the statute provides that the offense may be charged in words of substantially the same meaning, it is certainly much easier as well as much safer to follow the language of the statute, rather than to substitute language, and thereby make it necessary to determine whether it has substantially the same meaning. State v. Welch, 37 Wis. 196. See Davis v. State, 115 N. W. 150, 134 Wis. 632.

[2][3] 2. It is contended that the court improperly admitted evidence obtained upon the search of defendants' premises because the search warrant was improperly issued. The warrant was issued upon the affidavit of the district attorney. The following is the memoranda taken down by the justice:

“District Attorney Bohn, being duly sworn, on oath says that the defendant, Earl Hiller, has been complained about many times by people who see people coming from his place in a drunken condition. His place is located near Kilbourn. About two weeks ago a young fellow came to Kilbourn in an intoxicated condition. He was arrested and taken into justice of the peace court, and the chief of police of Kilbourn brought him to my office. I became interested in getting after this, and I examined this young fellow in my office at length, and took his statement, and he told me that he and several others had gone on Sunday to Hiller's place and procured moonshine and became intoxicated on that moonshine, and yesterday the chief of police called me and told me that he had been watching Hiller, and he was satisfied that if we got out a warrant at this time and would get busy now we would find the stuff at Hiller's.”

Upon the trial, the justice who issued the warrant testified as follows:

“I am the justice that issued the search warrant in this case. The district attorney, Mr. Bohn, came to my office and said he wished to get out a search warrant, and I started to look at the papers, and he said, ‘I think I had better be sworn,’ and he was sworn and made a statement to me. My recollection is that I didn't start to take it in writing, and at his suggestion he said he thought it ought to be reduced to writing, and so I called my secretary's attention to what he was saying, and she took it down, part of what was said. I couldn't say just the exact words, he talked quite a little about it, and in fact I think I finally said, ‘I don't think it necessary for you to take any more.’ He said he had been informed that Earl Hiller, who lived near Kilbourn, was selling moonshine, and that a young boy from Kilbourn, who had been arrested, I think for being drunk, had told him that he got his moonshine at Hiller's place, that he had been told--my recollection is by the police officer at Kilbourn, I am not sure but I think so--that numerous persons had been seen going there, and the officer was very well convinced that there had been liquor there.”

On cross-examination, District Attorney Bohn testified as follows:

“I told him, as I recollect, that this boy told me that he had been out there and they had purchased this liquor at this farm one Sunday, and I think I told him what the boy claimed he had given for it. I know that the lad told me positively what he had given for it at that time.

Q. You say this farm; did you mention what farm? A. Well, he said he had gone to the house, and I think I related this to the justice that they had gone over to this dwelling and purchased this liquor.

Q. Was the dwelling mentioned in any way? A. Well now I couldn't be positive, but I think it was.

Q. Well, what did you tell the justice where they got the liquor? A. Well, I think I told him just that, that the boy had gone over to the house on this place, he had told me about--

Q. You speak of the house on this place-- A. On this place that is described in the search warrant, and he told me how they had gone there and where they found the defendant, Mr. Hiller, and he told me who he purchased it of; I think I related substantially that whole story to the justice.”

It is argued that it was held in Endish v. State, supra, that the statute did not forbid the possession of privately distilled liquor in the home, but that case does not so hold. The possession without permit of privately...