People v. Burt

• Decision Date: 22 July 1926
• Docket Number: No. 173.,173.
• Citation: 236 Mich. 62,210 N.W. 97
• Parties: PEOPLE v. BURT.
• Court: Michigan Supreme Court

236 Mich. 62

210 N.W. 97

PEOPLE

v.BURT.

No. 173.

Supreme Court of Michigan.

July 22, 1926.

Exceptions from Circuit Court, Jackson County; Benjamin Williams, Judge.

Henry Burt was convicted of possessing intoxicating liquors, and he assigns exceptions before sentence. Conviction affirmed.

Argued before Entire Bench.

John F. Henigan, of Jackson, for appellant.

John Simpson, Pros. Atty., and Harry F. Barnard, Asst. Pros., both of Jackson, for the People.

BIRD, C. J. (dissenting).

The information filed in the Jackson circuit court against defendant charged that——

‘On the 17th day of October, A. D. 1923, and on divers days and times between that date and the first day of August, A. D. 1923, at the city of Jackson, in the county of Jackson aforesaid, did then and there unlawfully have in his possession a certain quantity of vinous, malt, brewed, fermented, spirituous and intoxicating liquors, to wit, 4 3/4 quarts of gin, so-called; 1 quart of Canadian whisky, so-called; several bottles of wine, so-called, and other liquors not identified, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan.’

When arraigned defendant stood mute, and a plea of not guilty was entered by order of the court. Upon the trial he was convicted, and he assigns exceptions before sentence. There are several assignments, two of which are important. His first contention is:

(1) That Act 53 of the Laws of 1919 is unconstitutional, because its title and section 2 of the act are broader than the constitutional inhibition; that the constitutional provision does not prohibit the possession of liquor for one's own use; that it is directed against the possession for the purpose of sale, barter, furnishing, or giving away, or as the result of manufacture; that the Wiley Law, Act 338, 1917, followed the constitutional limitation and did not make the possession of liquor for one's use unlawful; that section 2 of Act 53 of the Laws of 1919 made the possession of liquor for one's own use unlawful. In passing this law counsel argues that the Legislature went beyond the constitutional limitation.

(2) Defendant's counsel, during the trial, raised the question in various ways that defendant could not be legally convicted of the offense charged in the information unless some proof was made on the trial that defendant's dwelling house, which was used exclusively as such, was a place where intoxicating liquors were either manufactured or sold, or was a place of general public resort.

The proofs against defendant were given by three officers, who made the search, and one chemist. The officers testified that it was defendant's dwelling house which they searched, but no one of them testified that liquor had been manufactured or sold therein, or that the dwelling was a place of public resort. In fact, there was no proof in the case to that effect, unless it can be said that the affidavit for the search warrant made by one Nixon supplied it. The affidavit and warrant were in evidence.

Act 53, § 30, of the Laws of 1919, provides that——

‘No warrant shall be issued to search a private dwelling occupied as such unless some part of it is used as a store or shop, hotel or boarding house, or for any other purpose than a private residence, or unless such private dwelling is a place of public resort.’

In view of this section, we think it was incumbent on the people to show on the trial, after it appeared that the place searched was the dwelling house of defendant, and exclusively used as such, that defendant's house was within at least one of the exceptions of the statute. The trial court appeared to be of the opinion that the search warrant and affidavit sufficed for this purpose.

Undoubtedly, the affidavit of Nixon was sufficient to move the discretion of the magistrate to issue the search warrant. And it is probable that the officers were well within the law in executing the warrant and obtaining the evidence of defendant's guilt. But before that evidence was admissible on the trial, some proof was necessary that defendant's dwelling house came within one of the exceptions mentioned in the statute. Without such proof the presumption would be that it did not come within one of the exceptions. No such proof was offered by the people, unless it can be said that the fact that liquor was sold therein was established by the affidavit of Nixon. If this contention should prevail, then we have this situation: Defendant is charged with having unlawful possession of intoxicating liquor. His home is searched and the evidence is found, and he is convicted by the ex parte affidavit of Nixon, who does not appear in court, and apparently cannot be found. Without this proof in some form the case could not legally go to the jury. Defendant was convicted without being confronted by Nixon, or any other witness on that question. Nixon is not produced by the people, and no opportunity is given to defendant to cross-examine him. We think it was error to send the case to the jury on Nixon's ex parte affidavit, because in doing so defendant was deprived of his constitutional right to be ‘confronted with the witnesses against him.’ Article 2, § 19, Michigan Constitution.

It is suggested that defendant waived his right to raise this question because he did not move to suppress the evidence before trial. The answer to this is that the defendant did move before trial to quash the information, and among other reasons is the following:

‘Because the testimony taken in the lower court shows that the liquor was found in the private dwelling house of the respondent, and there is no testimony that he or any one else had sold or manufactured or kept for sale any liquor there, or that it was a place of public resort.’

This motion recites that it was based upon the files and records in said cause, on the return of the police judge, and the testimony taken in the lower court. This motion was denied by the trial court.

But had defendant made no motion before trial, he would have been, in my judgment, in equally as good position. This question does not belong to the class of questions which must be raised before trial. The questions belonging to that class are those calling in question the validity of the affidavit and search warrant and the proper execution of the warrant. These questions are not involved in this controversy. Defendant concedes that the affidavit was sufficient to move the discretion of the justice in issuing the warrant, and no complaint is made of the execution thereof. The question involved in this point is that the statute forbids the search of defendant's dwelling except under certain conditions. When it appeared that the liquor offered was obtained from defendant's dwelling, it was then the duty of the state to show affirmatively, before the liquor was admissible, that defendant's dwelling was a place where liquor was either manufactured or sold or was a place of public resort. The state appeared to recognize its duty in this respect and attempted to, and did, show it by the affidavit of Nixon which was made to obtain the search warrant. Defendant insists that if liquor were sold from his dwelling, it must be shown by Nixon in person and not by his affidavit. It was a fact which required substantive proof and could not be supplied by an ex parte affidavit. Defendant insists upon this because he has a constitutional right to be confronted by his accuser and is entitled to an opportunity to cross-examine him.

After the last argument has been made, the fact remains that defendant has been convicted of a felony when none has been shown. The only pretense of support is the affidavit of the itinerant who could not be found while the trial was in progress. Common fairness and common justice suggest that at some time, at some place, between the service of the warrant and the closing of the prison doors, defendant should have an opportunity to see and cross-examine his accusers. This opportunity has been denied to him.

On the failure of the people to make some showing on the trial that defendant's dwelling was a place where intoxicating liquor was either manfactured or sold, or that the dwelling was a place of public resort, defendant was entitled to a directed verdict in accordance with his request.

Attempt was made to cross-examine the chief of police as to the whereabouts of Nixon and what effort was made to subpoena him. This examination was proper and should have been permitted.

This view would ordinarily dispose of the case under our rule without considering the constitutional question, but in view of that question having been decided by one of my associates it will be considered here.

1. The people proposed a prohibitory amendment to the Constitution by means of the initiative. The amendment was submitted to the electors at the November, 1916, election and received the requisite number of votes and thereby became a part of the Michigan Constitution. It follows:

‘The manufacture, sale, keeping for sale, giving away, bartering or furnishing of any vinous, malt. brewed, fermented, spirituous or intoxicating liquors, except for medicinal, mechanical, chemical, scientific or sacramental purposes shall be after April 30, 1918 prohibited in the state forever. The Legislature shall, by law, provide regulations for the sale of such liquors for medicinal, mechanical, chemical, scientific and sacramental purposes.’ Const. Amend. art. 16, § 2.

It will be noted that this amendment contained no inhibition forbidding one to have possession of intoxicating liquors for his own use. The inhibition is directed against the manufacture and the possession of intoxicating liquors for the purpose of sale, keeping for sale, giving away, bartering, or furnishing. So far as this constitutional amendment is concerned, one could possess it for his own use.

Following the passage of this constitutional amendment, ...