Millin v. State

• Decision Date: 12 October 1926
• Citation: 191 Wis. 188,210 N.W. 411
• Parties: MILLIN v. STATE.
• Court: Wisconsin Supreme Court

191 Wis. 188

210 N.W. 411

MILLIN

v.STATE.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Error to Circuit Court, Grant County; S. E. Smalley, Judge.

Dwight Millin was convicted of possessing a still, mash, and privately manufactured distilled liquor, and he brings error. Affirmed.--[By Editorial Staff.]Walker & Christenson, of Lancaster, for plaintiff in error.

Herman L. Ekern, Atty. Gen., and R. M. Orchard, Dist. Atty., of Lancaster, for the State.

STEVENS, J.

Plaintiff in error presents two questions: (1) That the warrant under which the officers were making the search when the still, mash, and liquor was found gave the officers no right to make the search; (2) that the conviction ought not to stand because it was based on the uncorroborated testimony of an accomplice.

[1] 1. The search warrant was valid. It was not issued until a witness had been sworn and his testimony taken by the justice. The fact that the witness testified to the essential facts upon information and belief does not invalidate the search warrant. State v. Baltes, 183 Wis. 545, 550, 198 N. W. 282. The warrant was for a search of the premises of a Mr. Hesselman, on whose premises the still, mash, and liquor were found. In any event, it does not lie within the mouth of Millin, the plaintiff in error, to claim that the search of the Hesselman premises was not lawful. Hansen v. State, 188 Wis. 266, 267, 205 N. W. 813;Goldberg v. U. S. (C. C. A.) 297 F. 98, 101; MacDaniel v. U. S. (C. C. A.) 294 F. 768, 771.

2. The testimony upon which the verdict of guilty was based was that of a boy 17 years of age, who was operating the still when the officers found it, and who testified that Millin owned the still, mash, and liquor, and that he was operating the still for Millin.

“ ‘When there is no evidence against the accused, except the uncorroborated testimony of an accomplice, it is discretionary with the trial court whether to direct an acquittal or not. * * * A judgment will not be reversed for refusing to set aside a verdict founded upon such testimony alone.’ ” Murphy v. State, 124 Wis. 635, 656, 102 N. W. 1087, 1094.

[2][3] The trial judge who had the advantage of seeing the witnesses has exercised his discretion and refused to set aside the verdict of the jury. This court is satisfied that the trial court did not abuse its discretion in so doing. It seems much more probable that Millin, a man of mature years and a bartender, would be engaged in the manufacture of illicit...