People v. Flemming

• Decision Date: 22 March 1923
• Docket Number: No. 157.,157.
• Citation: People v. Flemming, 221 Mich. 609, 192 N.W. 625 (Mich. 1923)
• Parties: PEOPLE v. FLEMMING.
• Court: Michigan Supreme Court

221 Mich. 609

192 N.W. 625

PEOPLE

v.FLEMMING.

No. 157.

Supreme Court of Michigan.

March 22, 1923.

Exceptions from Circuit Court, Presque Isle County; Frank Emerick, Judge.

Charles Flemming was convicted of unlawfully having intoxicating liquors in his possession, and he brings exceptions before sentence. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. I. S. Canfield, of Alpena, for appellant.

Andrew B. Dougherty, Atty. Gen., and Ernest Converse, Asst. Atty. Gen., for the People.

STEERE, J.

Defendant was convicted in the circuit court of Presque Isle county, of violating the liquor law under an information charging that on the 10th day of June, 1922, in the township of Rogers, in said county, he--

‘did then and there unlawfully manufacture and have in possession a certain quantity of spirituous and intoxicating liquor, contrary to the form of the statute in such case made and provided,’ etc.

The case is here for review on exceptions before sentence.

The principal evidence against defendant was secured under a search warrant issued by a justice of the peace of that county, on an affidavit made by an officer of the state constabulary, reading as follows:

‘The affidavit of Floyd A. Martin of the city of Gaylord, county of Otsego, and state of Michigan, taken and made before me, C. S. Covey, a justice of the peace, of the township of Rogers, in said county of Presque Isle, upon the 6th day of June, A. D. 1922, who, being by me first duly sworn, says that intoxicating liquors are manufactured, possessed, sold, furnished and given away, contrary to law, in a one-story frame house, painted white and trimmed with blue, on the following described parcel of land, viz.: Lot No. 7 of block No. 5 of the Pine Wood addition to the village of Rogers, Presque Isle county, state of Michigan, situated in the township of Rogers, in said county and state and occupied by one Charles Flemming, as a private dwelling house and as a place for the manufacture and sale of liquor. That he, the said affiant, believes and has good reason to believe that the aforesaid intoxicating liquors, together with the vessels, containers, implements, furniture used in the illegal manufacture, possession, sale, and furnishing, and storage of said intoxicating liquors are now concealed in the building on the premises afore described, contrary to law. That the facts supporting the belief of the affiant and upon which the foregoing allegations are made are as follows: That on the 24th day of May, A. D. 1922, at about the hour of 3 o'clock in the afternoon, affiant saw a man whose name is unknown to him drive past the above-named premises, in a car and saw him give a signal by holding up two fingers, and saw him return almost immediately and stop in front of the house on said premises, and then receive two quart bottles which were taken from under the porch of said house and delivered to him by _____ Flemming, a boy of about the age of fifteen years and a son of the said Charles Flemming. That on the 30th day of May, A. D. 1922, in the evening and nighttime of that day affiant saw a great many cars drive up to said premises and stop there some of which remained for several hours, and that the occupants of said cars were sober upon their arrival there, that they entered the said house and remained for a considerable time and while there became intoxicated and many of them brought bottles away from said premises. That on several nights between the 24th and 30th day of May, A. D. 1922, affiant saw a number of cars drive to said premises and the occupants thereof became intoxicated while there and brought away bottles. Wherefore, the said Floyd A. Martin, prays for the issue of a warrant to an officer having power to serve criminal process commanding him to search the premises described and if such liquors are there found to seize the same with the vessels in which they are contained and all the implements, furniture, vehicles and conveyances used and kept for such illegal manufacturing, selling, furnishing, giving away, possessing and storing of such liquors and them safely keep and make immediate return on said warrant.’

The search warrant followed the description of the premises set out in the affidavit. Armed with this, the officers searched defendant's residence in Pine Wood addition to the village of Rogers and made return showing that they found in various receptacles, and seized, a quantity of intoxicating liquors, with certain mash and other material and equipment for manufacturing such liquor, including a distilling outfit concealed under the wood-shed floor. Complaint and warrant issued, examination was waived by defendant, and on arraignment in the circuit court he refused to plead to the information filed against him. His counsel then interposed a special motion to suppress the testimony obtained by the officers while in and about defendant's residence for various reasons. The motion was denied and a jury impaneled. The intoxicating liquor, still, and other evidence secured under the search warrant were introduced in evidence against defendant's motion to suppress, and various objections interposed by his counsel. No testimony was offered by the defense. Respondent was convicted under the charge of unlawfully having intoxicating liquor in his possession. All questions raised were saved for review by proper motions, objections, and exceptions. They are stated in counsel's brief as follows:

‘First, those taken to the denial of respondent's motion of suppress evidence obtained under the warrant to search his dwelling house. Second, those taken to the admission of testimony of the result of such search. Third, those covering the denial of respondent's motion for a directed verdict in his favor and the court's instructions to the jury.’

Upon its face, the affidavit on which the search warrant is based cannot be questioned. It contains abundant statement of facts showing probable cause for issuance of a search warrant, in the discretion of the committing magistrate. That feature of the controversy is fully covered and disposed of contrary to defendant's contention in People v. Musczynski, 220 Mich. 536, 190 N. W. 730, and cases there cited.

The further point is made that the house searched was located on lot 6, block 5, of Pinewood...