People v. Mitroff

• Decision Date: 16 July 1925
• Docket Number: No. 95.,95.
• Citation: 204 N.W. 726,231 Mich. 661
• Parties: PEOPLE v. MITROFF.
• Court: Michigan Supreme Court

231 Mich. 661

204 N.W. 726

PEOPLE

v.MITROFF.

No. 95.

Supreme Court of Michigan.

July 16, 1925.

Exceptions from Circuit Court, Shiawassee County; Joseph H. Collins, Judge.

Gabriel Mitroff was convicted of violating the liquor law. On exception before sentence. Conviction set aside, and defendant discharged.

Argued before McDONALD, C. J., and BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Guy M. Wilson, of Flint, for appellant.

Leon F. Miner, Pros. Atty., of Owosso, for the People.

FELLOWS, J.

The affidavit upon which the justice issued a search warrant, without stating the time, states, as the grounds of affiant's belief:

‘* * * And that the grounds of his said belief are as follows: He has smelled said liquor on the premises; he has observed a large number of persons going to said premises and coming away without any apparent legitimate business there.’

Armed with the search warrant, based on this affidavit, officers entered defendant's place of business, and told him they had a search warrant. They testify that a woman employé, on hearing this statement, quickly passed down behind the counter, and they heard something rattle; one or both of them immediately went behind the counter, and discovered that the employé had emptied the contents of a pitcher into a sink and turned on the water. The officer turned off the water and one of them sopped up the contents of the sink with a sponge and squeezed it into a bottle; upon an analysis it proved to have sufficient alcohol content to be intoxicating. One of the officers testifies:

‘After we had completed that part of our job, we went down cellar by going through the north part of the building and downstairs. We hunted the cellar over until we found the pipe leading from the sink in which pipe was a trap or gooseneck. I unscrewed the burr and lower part of the gooseneck. Mr. Denyes held a can under the trap, and we caught a quantity of moonshine whisky and water. We lost more than we got. I identify People's Exhibit C as the water and liquor that we caught from the trap. It had an odor which I identify as moonshine whisky.’

The officer's return to the search warrant is as follows:

‘State of Michigan, County of Shiawassee—ss.:

‘I hereby certify and return that by virtue of the within warrant I searched for the intoxicating liquors and implements therein named at the place therein directed and described and found 1–2 pint of moonshine whisky, more or less.

‘Dated at the city of Corunna this 22d day of September, A. D. 1924.

‘Geo. P. Lawcock.

‘Undersheriff.’

Defendant made the appropriate motion to suppress the evidence thus obtained, which motion was denied. Upon the trial, appropriate objections were made to receiving the liquor in evidence, but these were overruled, and both the liquid sopped up with the sponge and that obtained in the cellar were received in evidence. It is the only evidence upon which the conviction rests.

Before the argument of this case, the opinion in People v. Musk (Mich.) 203 N. W. 865, was handed down. Upon the argument...