People v. Middleton

• Court: Michigan Supreme Court
• Writing for the Court: FELLOWS
• Citation: People v. Middleton, 245 Mich. 197, 222 N.W. 173 (Mich. 1928)
• Decision Date: 04 December 1928
• Docket Number: No. 119.,119.
• Parties: PEOPLE v. MIDDLETON et al.

245 Mich. 197

222 N.W. 173

PEOPLE

v.MIDDLETON et al.

No. 119.

Supreme Court of Michigan.

Dec. 4, 1928.

Error to Circuit Court, Washtenaw County; Geo. W. Sample, Judge.

Alonzo Middleton and Floyd Wing were convicted of possessing intoxicating liquor, and they bring error. Affirmed as to defendant first named, and as to defendant last named reversed and defendant discharged.

Argued before the Entire Bench, except POTTER, J.Edward F. Conlin, of Ann Arbor (Andrew J. Sawyer and John W. Conlin, both of Ann Arbor, of counsel), for appellants.

Carl H. Stuhrberg, Pros. Atty., of Ann Arbor, for the People.

FELLOWS, J.

Alonzo Middleton and his wife, Carrie B., Floyd Wing and his wife, Ruth, were jointly prosecuted and convicted of having in their possession intoxicating liquor. What disposition was made of the conviction of the wives does not appear from the record. Alonzo and Floyd alone review their convictions. The home was owned by Mrs. Middleton and was occupied by her and her husband. Ruth Wing was their daughter, and defendants' testimony establishes beyond question that she and her husband with their little baby were temporarily staying with her parents and paying board while they were completing a house of their own. There was a search of the premises under a valid search warrant based on an affidavit, correct in form, sworn to by one Hagen, stating that he purchased a gallon of whisky of defendant Middleton at the premises on July 3, 1927, at about 5 o'clock in the afternoon.

1. Defendants' motion to suppress was supported by several affidavits all tending to show that none of the defendants were at the Middleton home at or about 5 o'clock of July 3d. Defendants called Hagen and examined him in open court. His testimony established, if believed, that he was mistaken in the date, and he testified that he purchased the liquor on the 2d. The showing of absence from home on this date was quite negligible. Defendants insisted in the court below, and do here, that they were justified in denying the truth of the facts alleged in the affidavit on their motion to quash on the authority of People v. Burt, 236 Mich. 62, 210 N. W. 97. While we would be justified in disposing of this question by simply saying that if the showing made presented a question of fact for the determination of the court, the trial judge correctly decided it, we do not think we should even tacitly acquiesce in the contention that the Burt Case opens the door to a denial of or a trial upon all the facts alleged in the affidavit, those which do not go to the jurisdiction as well as those which do. In that case we had before us the method to be used to effectuate the portion of section 30, Act 336, Public Acts 1921, which protected the private dwelling from unreasonable search and which rendered it immune from such search so long as it retained the character of a purely private home. Mr. Justice Bird there entertained the view that the people must establish on the trial that it had lost such private character before there could be a conviction. The balance of the court agreed that the Legislature had expressly inhibited the search under a search warrant of a purely private home and had guaranteed its owner from such unreasonable search and that such right could be protected by permitting the home owner on a motion to suppress to traverse the allegations of the affidavit that the house was used for a prohibited purpose. So if it had been alleged in the affidavit that the home was a ‘place of public resort,’ etc., the proper place to dispute and try out that question was on motion to suppress. What the court there held was that the section cited guaranteed to the purely private dwelling the right of immunity from unlawful search and pointed out the method of protecting such right. It was not intended and clearly...