Lea v. State

Decision Date10 June 1944
Citation181 S.W.2d 351
PartiesLEA et ux. v. STATE.
CourtTennessee Supreme Court

Error to Circuit Court, Wilson County; W. H. Turner, Judge.

Fred Lea and wife were convicted of possessing intoxicating liquors, and they bring error.

Affirmed as to named defendant, and reversed as to defendant wife.

W. B. Williams, of Lebanon, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.


The residence of plaintiffs in error was raided by officers armed with a search warrant and a quantity of whiskey in pint bottles was there found concealed under the floor of one of the rooms. The defendants did not testify and offered no explanation of these convincing facts. They were both convicted of possessing intoxicating liquors and given jail sentences of thirty days and a joint fine of $100.

On this appeal, the admission of the testimony of the officers is assigned as error on the ground that their information was obtained by an illegal search, that the search warrant under authority of which they acted was invalid in that the description of the property was insufficient, the specific objection interposed being that while the affidavit on which the warrant was based averred that these parties were 'in unlawful possession and control of a quantity of intoxicating liquors * * * in violation of law,' etc., it did not go further and aver that this particular intoxicating liquor contained more than five per cent alcoholic content, and that it is not unlawful to possess intoxicating liquor unless it contains more than five per cent alcoholic content. The argument is that the affidavit is fatally defective because it fails to negative that the liquor referred to was of a type or kind that might be lawfully possessed, such as beer, ale or wine, contrary to the ruling of this Court that such negativing exceptions are not required to be set forth in indictments charging unlawful possession, etc., of intoxicating liquors. McHenry v. State, 168 Tenn 667, 80 S.W.2d 655; Clark et al. v. State ex rel Bobo, 172 Tenn. 429, 113 S.W.2d 374, 782.

It is first to be observed that we are here presented with a challenge of the determination by a judicial officer, in the exercise of the discretion expressly conferred on him by statute, of the sufficiency of the evidence presented to him of probable, or reasonable, cause for his belief that the defendants named in the warrant were in unlawful possession of intoxicating liquor.

Code Section 11901 expressly confers on the magistrate jurisdiction to determine this issue. This section reads: 'If the magistrate is satisfied of the existence of the grounds of the application, or that there is probable ground to believe the existence, he shall issue a search warrant,' etc. (Italics supplied.) This definition of the phrase 'probable cause,' the meaning of which we are considering, is given by Bouvier: 'Probable Cause. A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged. Carl v. Ayers, 53 N.Y. [14], 17; Fugate v. Millar, 109 Mo. 281, 19 S.W. 71; Clement v. Major, 1 Colo.App. 297, 29 P. 19.' 2 Bouv.Law Dict., Rawle's Third Revision, page 2728.

This Court has repeatedly recognized that 'in determining that probable cause appears for issuance of the warrant the magistrate is performing a judicial act.' Gallimore v. State, 173 Tenn. 178, at page 181, 116 S.W.2d 1001, et page 1002; Seals v. State, 157 Tenn. 538, at page 541, 11 S.W.2d 879, at page 880; Hampton v. State, 148 Tenn. 155, 252 S.W. 1007; Craven v. State, 148 Tenn. 517, 256 S.W. 431. Mr. Justice Cook, in Hampton v. State, supra, cites State v. Peterson, 27 Wyo. 185, 194 P. 342, 348, 13 A.L.R. 1284. And that opinion emphasizes that 'the finding of 'probable cause' is a judicial question,' to be decided by 'the judge or magistrate before whom the complaint is filed,' citing 24 R.C.L. 707, and a number of decisions. See 3 A.L.R. p. 1519. Moreover, we have applied the material evidence rule to these hearings before the magistrate on this issue of a showing of 'probable cause.' In Gallimore v. State, supra, we said: 'It is for the magistrate himself to determine whether, in any case before him, it is essential that the name of an informant, otherwise shown to him to be a reliable person, shall be given. In other words, what particular, or specific, facts shall be placed before the magistrate in order to justify the exercise of his discretion in determining whether or not 'probable cause' exists is for the magistrate himself to determine, provided only that it appears from the face of the affidavit that there was material evidence before him supporting his action. To this extent only will this Court review his action.'

In two early cases by our Chief Justice, Elliott v. State, 148 Tenn. 414, 256 S.W. 431; and Craven v. State, 148 Tenn. 517, 256 S.W. 431, while strongly emphasizing that the affidavit presented to the magistrate must, 'set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist,'--that otherwise the magistrate would have nothing on which to exercise discretion--and his act 'in issuing the warrant would not be based upon any judicial discretion,'--the opinions clearly recognize that, if the character of the information had by the affiant is disclosed to the magistrate, it is his judicial province to determine its sufficiency. Hampton v. State, supra, so holding, is cited with approval.

The annotation in 3 A.L.R., at p. 1519, calls attention to important distinctions applicable here, where we are considering the sufficiency of the description in the affidavit and warrant. It emphasizes the distinction, in the first place, between the degree of accuracy required in describing the place to be searched, and that required in describing the property to be searched for. It is said that the place to be searched should 'be designated with sufficient accuracy to prevent the officer from searching the premises of the person under a warrant directed against those of another, while the description of the property to be seized will bary according to whether the identity of the property, or its character, is the matter of concern.' (Italics supplied.) The note proceeds to quote: 'Thus, where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize not apecified property, but any property of a specified character which, by reason of its character, and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place and circumstances, would be unnecessary, and oridinarily impossible.' State v. Nejin, 1917, 140 La. 793, 799, 74 So. 103.

The Annotator, in 74 A.L.R., at p. 1513, after reviewing and quoting from numerous decisions, says that, 'A general description of the things to be seized as intoxicating liquor is sufficient, it being unnecessary for the affiant to guess at the various kinds of intoxicating liquor, their quantity, or the character of the apparatus used in their manufacture,' etc., and again notes the necessity for greater accuracy in designation of a specific thing to be searched for. So it is said in 30 Am.Jur. 537, 'The accuracy required in describing the premises is not requisite in describing the liquor.'

The specific question before us is whether or not the description in the affidavit as a 'quantity of intoxicating liquors in possession in violation of law,' afforded the magistrate probable cause, or reasonable grounds, for believing that the intoxicating liquor referred to was not beer or wine, legally possessed, but whiskey, rum, brandy, or gin illegal to possess. Was it not competent for the magistrate to be influenced by the generally accepted meaning given the term 'liquor' as distinguished from 'beer'? Certainly, in common parlance, when one speaks of liquor, he does not ordinarily mean beer. One invited to have a drink of 'liquor' would be surprised and usually disappointed by tender of a bottle of beer. Many men who use one do not use the other. The two are treated and classed as distinct beverages, both in use and in phraseology. An officer who represents to a magistrate that John Doe is hauling a quantity of liquor certainly does not intend to convey the meaning that John Doe is hauling a quantity of beer, and his representation is not so understood by the magistrate. It seems inconceivable that the affiant in this case had in mind beer, or that the magistrate could have so understood him. Was not this magistrate afforded probable cause, 'a reasonable ground of suspicion, supported by circumstances,' (2 Bouv.Law Dict., Rawle's Third Revision, page 2728) that this defendant was in possession of liquor, as commonly understood, rather than beer?

And this is the meaning in which the term 'intoxicating liquor' has been constantly used in our statutes and opinions. The common statutory usage, when both classes of beverage are intended, is to specify both, by some such phrase as 'intoxicating liquor, including beer.'

Conceding the force of the suggestion that the analogy between the charge in an indictment and that in a search warrant proceeding is not controlling (although it would seem that no greater particularity should be required to shw probable cause in a preliminary proceeding than is required in a proceeding to determine the guilt or innocence of the accused), we have here an illustration, certainly, of the sense in which the phrase or term ...

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