People v. Musk

Citation192 N.W. 485,221 Mich. 578
Decision Date23 March 1923
Docket NumberNo. 160.,160.
PartiesPEOPLE v. MUSK.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Exceptions from Circuit Court, Muskegon County; John Vanderwerp, Judge.

Benny Musk was convicted of manufacturing and possessing a quantity of whisky and he brings exceptions. Conviction vacated, and new trial ordered.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ.Merlin Wiley, Atty. Gen., and Harry W. Jackson, Pros. Atty., and R. Glen Dunn, Asst. Pros. Atty., both of Muskegon, for the People.

F. E. Wetmore, of Hart, for respondent.

BIRD, J.

Defendant was informed against, tried, and convicted in the Muskegon circuit court for having violated the liquor laws, in that he manufactured and had in his possession a certain quantity of whisky.

Carl Holland, who appears to have been an officer at Muskegon Heights, made an affidavit for a search warrant, in which he stated that certain premises known and numbered 926 Elwood avenue in Muskegon Heights were occupied by defendant as a place of public resort, and not as a drug store, etc. Upon this affidavit a search warrant was issued by a justice of the peace, directing the officer to search No. 926 Elwood avenue for intoxicating liquors. The officer in whose hands the warrant was placed executed it by searching a dwelling house known and numbered 932 Elwood avenue, instead of 926 Elwood avenue, and found therein a certain quantity of whisky, which it was claimed by the prosecution was in the possession of defendant, as he resided at 932 Elwood avenue.

After the arrest and before trial defendant made a motion to have the whisky returned because illegally seized. This motion was denied by the trial court. Subsequently defendant's counsel objected to the admission of the whisky in evidence, but this objection was overruled.

In this court defendant raises several questions, but we think the important one is whether an officer, armed with a search warrant directing him to search premises known and numbered 926 Elwood avenue, could legally search premises known and numbered 932 ELWOOD avenue and seize liquor found therein.

It is argued on behalf of the people that the affidavit for the search warrant, not only described the premises as 926 Elwood avenue, but also described them as premises occupied by the defendant, and that, inasmuch as premises 932 Elwood avenue were actually occupied by the defendant, it was merely a clerical error, and the mistake unimportant. The argument of the prosecutor that the averment that the premises were occupied by the defendant would suffice in describing the place to be searched might have some force if all dwelling houses could be searched with a search warrant. The law forbids the searching of dwelling houses, unless it is shown that it is a place of public resort, etc. Act 53 of the Laws of 1919. There was a showing made in the affidavit that No. 926 Elwood avenue was a place of public resort. This showing enabled the officer to get a warrant to search it. Without this showing no search warrant could legally have been issued for that purpose. There was no showing that the dwelling house known as No. 932 was a place of public resort, and therefore it could not be legally searched even with a search warrant. The mere fact that the description was aided by alleging that defendant occupied the premises would not be sufficient to authorize a search warrant for a dwelling house.

The Constitution and legislative acts of this state prescribe as a prerequisite to the right to search one's home or possessions that the place to be searched and the thing to be searched for shall be alleged on oath. These elements have always been regarded as...

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20 cases
  • State v. McLennan
    • United States
    • United States State Supreme Court of Idaho
    • 3 January 1925
    ...... result of said publication and distribution was to create in. the minds of the people of the county a widespread belief in. the defendant's guilt, it is an abuse of discretion on. the part of the trial court to deny a change of ...S., sec. 9321; Commonwealth v. Courtney, . 243 Mass. 363, 138 N.E. 16; Hampton v. State, 148. Tenn. 155, 252 S.W. 1007; People v. Musk, 221 Mich. 578, 192. N.W. 485.). . . Before. it can be held one has waived any of his constitutional. rights, the court should be ......
  • People v. Toodle
    • United States
    • Court of Appeal of Michigan (US)
    • 20 February 1987
    ...Though Michigan case law indicates that a warrant for one address does not authorize search for another address, People v. Musk, 221 Mich. 578, 192 N.W. 485 (1922), in this case the evidence showed that the upstairs flat was 15903 LaSalle and the address of the downstairs was 15901 LaSalle.......
  • State v. District Court of Fourth Judicial Dist. in and for Missoula County
    • United States
    • United States State Supreme Court of Montana
    • 29 March 1924
    ...holding that a search warrant directing an officer to search places generally is clearly illegal." 24 R. C. L. p. 713. See People v. Musk, 221 Mich. 578, 192 N.W. 485. So has been held that a warrant directing the search of the dwelling house of a named person authorizes the search only of ......
  • People v. Bawiec
    • United States
    • Supreme Court of Michigan
    • 24 July 1924
    ...person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.’ In People v. Musk, 221 Mich. 578, 192 N. W. 485, the premises searched were 932 Elwood avenue upon a warrant naming 926 Elwood avenue. It was held that the search and seizure......
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