Hoover v. People

• Decision Date: 02 February 1920
• Docket Number: 9577.
• Citation: 68 Colo. 249,187 P. 531
• Parties: HOOVER et al. v. PEOPLE.
• Court: Colorado Supreme Court

187 P. 531

68 Colo. 249

HOOVER et al. v. PEOPLE.

No. 9577.

Supreme Court of Colorado, En Banc.

February 2, 1920

Error to Adams County Court; W. C. Hood, Jr., Judge.

Information by the People against George Hoover and M. H. Richards partners as Richards & Hoover, and another, for forfeiture of an automobile used in violating the liquor law. From an adverse judgment, defendants bring error.

Reversed with directions to dismiss.

Harry S. Class, of Brighton, for plaintiff in error Ethel May richards.

M. B Waldron, of Denver, for plaintiffs in error Richards &amp Hoover.

Victor E. Keyes, Atty. Gen., and Charles Roach, Deputy Atty. Gen. (H. C. Riddle, of Denver, of counsel), for the People.

DENISON, J.

This was an information in the name of the People, in the nature of a libel, under the initiated statute of November 5, 1918 to declare forfeited certain whisky and the automobile in which it was captured. The facts before this court are agreed on.

The plaintiffs in error, George Hoover and M. H. Richards, were partners operating a garage, automobile livery, and taxicab business in Denver. They employed a number of chauffeurs, and owned and used the machine in question in that business. Ethel May Richards, plaintiff in error, and intervener below, was a bona fide mortgagee of said automobile. Neither she nor Richards nor Hoover knew that it was used to carry liquor, or had any notice or knowledge sufficient to put them on inquiry. Richards & Hoover instructed 'all their drivers not to use the car for transporting intoxicating liquor in any way.'

In the early morning of January 28, 1919, one James Midgett, a chauffeur in the employ of Richards & Hoover, was driving said automobile in Adams county, carrying therein 57 cartons of whisky. He was pursued by the sheriff and posse, was fired on, and wounded. He then abandoned the car, escaped, and has never been apprehended. The officers were acting without a warrant.

February 17, 1919, this proceeding was begun. Plaintiff in error Ethel May Richards intervened, claiming under her chattel mortgage. No question was raised as to the forfeiture of the whisky, but Richards & Hoover contested the forfeiture of the automobile, on the ground that they were bona fide owners, and innocent of any wrong. The court declared the automobile forfeited. The case is brought here on error, and the question we are asked to determine is whther the interest of a wholly innocent person in a vehicle used for the unlawful transportation of intoxicating liquor is forfeited because of such unlawful use?

Under the present facts there can be no forfeiture. The procedure, if valid at all, must be so under chapter 98 of the Session Laws of 1915, as amended by chapter 82 of [68 Colo. 251] the Session Laws of 1917, and chapter 141, S. L. 1919; the last being the so-called 'Bone Dry Act' initiated and passed by the people in November, 1918. The sections particularly referred to are known as the 'search and seizure' sections--section 11 of the act of 1915, as amended in 1917 (S. L. 1917, pp. 285-287); section 12 of that act, as amended in S. L. 1919, pp. 464, 465; section 13 (S. L. 1919, pp. 465, 466); and section 20 (S. L. 1919, p. 467). Said sections are as follows:

'Sec. 11. Search and Seizure.--If any person make an affidavit before any justice * * * or the judge, * * * stating that he has reason to and does believe that intoxicating liquors are being * * * kept * * * or carried in violation of this act * * * and describing in such affidavit the premises, wagon, automobile * * * or device to be searched, then such justice or judge * * * shall issue a warrant to any officer which the complainant may designate, * * * commanding such officer to search the premises, * * * automobile * * * or device described in such affidavit. * * * The officer charged with the execution of such warrant may * * * break open any premises, * * * automobile * * * or device, * * * which by said warrant he is directed to search, and may execute said warrant any hour of the day or night.' This section then prescribes the form of warrant, which requires the officer to search the designated premises and bring before the judge any liquor which may be found in such search and the vehicle which carried it.

'Sec. 12. Duty of Officer.--If any intoxicating liquors are there found, said officer shall seize the same and the vessels in which they are contained * * * and any * * * automobile * * * or device used in conveying same, and them safely keep and make immediate return on such warrant. Such property shall not be taken from the custody of any officer seizing or holding the same, by writ of replevin or other process, while the proceedings relating thereto are pending. Final judgment of conviction in such proceedings shall be a bar to any and all suits for the recovery of any such property so seized, or the value of the same, or for damages alleged to arise by reason of such seizure and detention. The judgment entered shall find said liquor to be unlawful and shall direct its destruction forthwith. * * * The said * * * automobile * * * or device * * * shall likewise be ordered disposed of as personal property is sold under execution and the proceeds therefrom applied, first in the payment of the costs of the prosecution and of any fine imposed, and the balance, if any, paid into the general school fund of the county in which such conviction is had. * * * The officer serving the warrant shall forthwith file a complaint in the court issuing same, charging such violation of law as the evidence in the case justifies. If such officer refuses or neglects to file such complaint, then the person filing the affidavit for the search warrant, or any other person, may file such complaint. * * *

'Sec. 13. Officers' Search.--Any sheriff, * * * or any other officer or person authorized by this act, having personal knowledge or reasonable information that intoxicating liquors are being kept in violation of law in any place, * * * shall search such suspected place without a warrant, and without any affidavit being filed, and if such officer or person finds upon the premises intoxicating liquors, he shall seize the same together with the vessels in which they are contained * * * and any * * * automobile * * * or device used in conveying said liquors or kept for the purpose of violating any of the provisions of this act, and arrest any person or persons in charge of such place, or aiding in any manner in carrying on the business conducted in such place, and shall take such person, or persons, with the liquors, * * * automobile * * * or device, so seized, forthwith, or as soon as convenient before a justice of the peace or judge of any court in the county in which such seizure is made having jurisdiction * * * shall without delay make and file a complaint for such violation of law as the evidence justifies. It shall be lawful for officers in executing the duties imposed upon them by this section to break open doors or enclosures for the purpose of obtaining possession of such intoxicating liquors.'

'Sec. 20. No Property Rights.--There shall be no property rights of any kind whatsoever in any liquors, vessels, appliances, * * * automobiles, * * * or devices used in or kept for the purpose of violating any of the provisions of this act.'

We find no provision for forfeiture, unless it be that sentence of section 12 which we have italicized, or section 20, which we have quoted.

No search warrant was in the hands of the sheriff at the time of the seizure. It follows that the proceedings could not have been under sections 11 and 12. Section 12 applies only to things seized under a search warrant issued under section 11. It cannot be made to apply to any other property. Such a statute will not be construed to forfeit property of an innocent person unless such construction is unavoidable. Shawnee...