McSherry v. Heimer
| Decision Date | 04 February 1916 |
| Docket Number | 19,570 - (214) |
| Citation | 156 N.W. 130,132 Minn. 260 |
| Parties | MARY McSHERRY v. JOHN M. HEIMER |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county against John M Heimer and Charles Kleitz to recover $500 for malicious and unlawful breaking into plaintiff's house and carrying away therefrom 20 bushels of potatoes. Defendant Heimer in his separate answer alleged that about 16 bushels of potatoes which he owned had been stolen from his premises and a part of them deposited in a cellar of plaintiff's homestead and another part in the yard near her house; that under a search warrant issued by the village justice of the peace defendant, at the request of the constable of the village accompanied him to plaintiff's premises solely for the purpose of assisting the constable in identifying the potatoes; that thereafter by due process of law they were removed from the plaintiff's premises by the constable and held in his possession until the justice of the peace in due proceedings before him judicially determined that they were the sole property of defendant, and alleged that defendant's entry upon plaintiff's premises was made pursuant to the express consent and permission of plaintiff and her husband. Defendant Kleitz in his separate answer justified under a legal search warrant duly issued to him as village constable, and that his entry upon the premises was made in his official capacity. The case was tried before Dickson, J. At the close of plaintiff's case she dismissed the action upon the merits as against defendant Kleitz. The case was submitted to a jury which returned a verdict for $100 against defendant Heimer. From the judgment entered on the verdict, defendant Heimer appealed. Reversed.
Search warrant.
1. A search warrant fair on its face protects the officer executing it, and those called by the officer to assist, even though the complaint upon which it issued is insufficient.
Search warrant -- description of place sufficient.
2. The place to be searched is particularly described so as to meet the constitutional requirement, when the description in the warrant furnishes data from which the officer is enabled to definitely locate the place. Under this rule the description in the warrant was sufficient.
Search warrant.
3. The warrant authorized a search of plaintiff's dwelling, it being part of the premises named in the warrant.
Butler, Mitchell & Hoke and J. F. Cowern, for appellant.
C. D. & R. D. O'Brien, for respondent.
It appears from the bill of exceptions that, if the search warrant under which defendants justified was valid and permitted the search of the dwelling house of plaintiff and her husband, then the judgment in favor of plaintiff cannot stand, the action being one for unlawful trespass in searching the house and premises of plaintiff. The search warrant was issued by a justice of the peace upon the sworn complaint of appellant, and was delivered to the defendant Kleitz, a constable, for service. At the request of the constable the appellant accompanied the officer to identify the property to be seized. During the trial plaintiff dismissed as to the officer.
Whether the complaint upon which the warrant issued was a good legal complaint we need not consider, for if the warrant was fair on its face the officer was protected in executing it, and also appellant, who assisted at the officer's request. Ingraham v. Booton, 117 Minn. 105, 134 N.W. 505, Ann. Cas. 1913D, 212.
Section 10, article 1, of our state Constitution, protecting against unreasonable searches and seizures, provides that "no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized." The fourth amendment to the Constitution of the United States is of the same import. The claimed invalidity of the warrant under which appellant justified is predicated upon the description given therein of the place to be searched, and the further contention that in no event should it be held to authorize a search of the dwelling occupied by plaintiff herein. The part of the warrant referred to recites that John Heimer had made complaint on oath that 20 bushels of his potatoes have been stolen, and that he had good reason to believe and did believe that the same are concealed "on the premises of one John McCherry situated in the village of North St. Paul in said county in addition called Colby of said village." The warrant then commands the officer "forthwith to enter the premises of one John McCherry situated in the above described location" and make the search for the property. The proof showed that the dwelling owned and occupied by plaintiff and her husband, John McSherry, was located in a sparsely-settled district of the village of North St. Paul upon a five-acre tract, whereon in addition to the dwelling was a small barn, a few other small out-buildings and a potato pit; the legal description of the premises being block 25, Fifth addition to North St. Paul. This addition was commonly known and spoken of as Colby addition. Appellant at the trial asked leave to amend his answer by alleging that plaintiff and her husband, for a long time prior to this suit, were known and commonly spoken of in said village as Mary McCherry and John McCherry and that there were no other persons in said village or in the vicinity thereof whose names were either McSherry or McCherry. He also offered competent proof to that effect. Upon objection the request and offer were rejected, not in the exercise of any discretion, but for the reason that the search warrant was invalid, hence the amendment asked for and the tendered evidence were immaterial.
It is a sufficient designation of the place to be searched, if the officer to whom the warrant is directed is enabled to locate the same definitely and with certainty. This...
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