People v. Flaczinski

• Decision Date: 19 July 1923
• Docket Number: No. 118.,118.
• Citation: 194 N.W. 566,223 Mich. 650
• Parties: PEOPLE v. FLACZINSKI.
• Court: Michigan Supreme Court

223 Mich. 650

194 N.W. 566

PEOPLE

v.FLACZINSKI.

No. 118.

Supreme Court of Michigan.

July 19, 1923.

Exceptions from Circuit Court, Jackson County; James A. Parkinson, Judge.

Louis Flaczinski was convicted of unlawful possession of intoxicating liquor, and he brings exceptions before sentence. Affirmed.

Argued before WIEST, C. J., and McDONALD, CLARK, BIRD, SHARPE, and MOORE, JJ.John Simpson, Pros. Atty., and Harry E. Barnard, Asst. Pros. Atty., both of Jackson, for the People.

J. Adrian Rosenburg and F. L. Blackman, both of Jackson, for respondent.

SHARPE, J.

Defendant was convicted in the Jackson county circuit court under a charge in the information filed against him that on January 17, 1923, and divers other preceding dates, he unlawfully had in his possession intoxicating liquor, ‘to wit, four gallons of moonshine whisky.’ He seeks reversal on exceptions before sentence.

Under authority of a search warrant officers visited premises occupied by defendant where they found and seized evidence of his guilt which his counsel sought to suppress by a preliminary motion made in time and form to save the question for review. The motion was denied. The information contained two counts, one charging unlawful manufacture, and the other unlawful possession of intoxicating liquor. At conclusion of the people's testimony both parties rested.

On motion of defendant's counsel the prosecution was required to elect between counts, and the prosecuting attorney elected to go to the jury under the second count, which charges unlawful possession. But one claimed error is urged in defendant's brief, stated as follows:

‘The sole question is: ‘If an officer go unlawfully and as a willful trespasser in the dead of night to a dwelling house and premises, and make a search thereof, and if he used the information discovered in this illegal search to obtain a search warrant, is the evidence seized in the subsequent search made by virtue of said search warrant admissible in evidence against the respondent? Counsel maintain that the affidavit made by Marsh on which the search warrant was issued shows on its face that he was a trespasser, and on the premises without legal right; that it therefore conferred no jurisdiction on the justice to issue the search warrant, and the subsequent search was therefore illegal.’'

Defendant resided upon a farm located on ‘Sutton road,’ in Leoni township, Jackson county. March was a member of the state constabulary stationed at the city of Jackson in said county. The affidavit which he made before the magistrate was in legal form, and states the grounds of affiant's belief as follows:

‘That on the above-described premises are certain buildings, that is, a dwelling house, barn, sheds, and other outbuildings; that the premises above described are farm premises; that on the evenings of January 13 and 15 and 16, A. D. 1923, I was at said premises and up near to said buildings, and that then and there I could smell the odor of mash and moonshine whisky coming from said building or some of them, that mash is a concoction out of which moonshine whisky, an intoxicating beverage, so called, is manufactured; that I am familiar with the smell of mash, having smelled considerable quantities of it, and also of moonshine whisky, and that what I smelled as alleged aforesaid was mash and moonshine whisky.’

The odor of intoxicating liquor or of mash for its manufacture furnishes sufficient probable cause to authorize the issuance of a search warrant and to justify officers under certain circumstances in the belief that a felony is being committed. People v. Warner, 221 Mich 657, 192 N. W. 566;U. S. v. Borkowski (D. C.) 268 Fed. 408;U. S. v. Rembert (D. C.) 284 Fed. 1002. Counsel for defendant does not question the sufficiency of this affidavit to authorize issuance of the search warrant, aside from the contention that the incriminating facts stated in it were obtained by a trespass upon defendant's private premises. When Marsh first detected the odor of mash and moonshine whisky, with which he was familiar, coming from the buildings on defendant's premises, he was out in the highway near by them. He did not go upon the premises at all until the evening of January 16, which was his third visit. He testified that he then first walked up the Sutton road, and stood outside the fence for a while, then walked to the side door of the house near the rear, and rapped on the door, heard some talking and laughing inside, but saw no one, and, after standing there for a short time, went back out on the road. On that night he satisfied himself the odor came from a small building or shed. On cross-examination he was asked and answered:

‘And when you say...