People v. Cech

• Decision Date: 22 July 1926
• Docket Number: No. 116.,116.
• Citation: 209 N.W. 944,236 Mich. 75
• Parties: PEOPLE v. CECH
• Court: Michigan Supreme Court

236 Mich. 75

209 N.W. 944

PEOPLE

v.CECH

No. 116.

Supreme Court of Michigan.

July 22, 1926

Frank Cech was convicted under the Prohibition Law, and he brings exceptions before sentence. Affirmed and remanded for judgment.

Argued before Entire Bench.

Bird, C. J., dissenting.Daniel F. Pagelsen, of Grand Haven, for appellant.

Fred T. Miles, Pros. Atty., of Holland, for the People.

CLARK, J.

Exceptions before sentence. Conviction under the Prohibition Law.

The affidavit for a warrant to search defendant's private dwelling stated, in substance, that the place was used for the sale of intoxicating liquor. Section 30, Act No. 336, Pub. Acts 1921, provides, in part:

‘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, or unless it is being used for the unlawful manufacture or sale of intoxicating liquor.’

Upon the search of the dwelling, a quantity of moonshine whisky was seized. The charge was possession. At the preliminary examination, the evidence adduced, which was taken over objection, was that of the police officer who made the search, to the effect that he found and seized the moonshine whisky in defendant's dwelling. In the circuit court, defendant's motion to quash was denied. The evidence at the trial was like that at the examination. The whisky was in evidence. At neither the examination nor the trial did the people have evidence that defendant's private dwelling was used for the sale of intoxicating liquor, and defendant contended by the motion to quash and by motion to discharge that such evidence was indispensable at the examination and at the trial to show that an offense known to the law had been committed, that it was upon the people to establish by evidence at the examination and at the trial that defendant's private dwelling had been used for the sale of intoxicating liquor, and that without such showing, evidence of defendant's possessing the liquor in his private dwelling was inadmissible.

The evidence against defendant was admissible unless in obtaining it the officer violated the law as to search and seizure. Article 2, § 10, State Const., and statute cited. The affidavit for the search warrant and the warrant (of record not as evidence but as part of the return, 3 Comp. Laws 1915, § 15837) are fair and sufficient...