People v. Preuss
| Decision Date | 13 November 1923 |
| Docket Number | No. 137.,137. |
| Citation | 195 N.W. 684,225 Mich. 115 |
| Parties | PEOPLE v. PREUSS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Clinton County; Edward J. Moinet, Judge.
Adolph Preuss was convicted of unlawfully possessing intoxicating liquor, and he brings error. Judgment reversed, and defendant discharged.
Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Walbridge & Fehling, of St. Johns, for appellant.
Andrew B. Dougherty, Atty. Gen., and Oliver Spaulding, Pros. Atty., of St. Johns, for the People.
On November 23, 1922, the sheriff of Clinton county accompanied by a deputy went to defendant's farm home in Victor township to execute a search warrant directing the search of said premises for some stolen beans. No beans were found there, and the sheriff made the following return to the warrant:
‘By virtue of the within warrant I searched for goods and chattels therein named, at the place herein directed and described, and found none of the within named beans on said premises.
‘Dated St. Johns, this 2d day of December, A. D. 1922.
John S. Barnes, Sheriff.'
He did, however, while making search for the beans named in his warrant discover in one of the bedrooms of defendant's residence seven gallons of moonshine whisky, which he seized, and arrested defendant for unlawfully having it in his possession. On his complaint a warrant was issued, defendant was arrested and held by the committing magistrate for trial at the next ensuing term of the circuit court under a charge of unlawfully and feloniously having in his possession, storing and keeping seven gallons of intoxicating liquor called moonshine whisky. Against the information filed in the circuit court charging him with that offense his counsel timely moved for an order that the information be quashed, the respondent discharged, the liquor so seized returned, and the evidence obtained in the search be suppressed, urging as reasons therefor that the officers as the time they entered and searched defendant's dwelling, arrested him, and seized the liquor had no warrant for his arrest, or search warrant issued for the purpose of or authorizing the search for or seizure of intoxicating liquors on his premises, and that the search warrant under authority of which they claimed to have acted was insufficient in law to justify even a search and seizure of the property described in it, because no facts are set forth in the sworn complaint upon which it is based to justify the magistrate in issuing a search warrant.
These preliminary objections were overruled. Upon trial of the case the right to review all questions so raised was saved by timely motions, objections, and exceptions. Defendant offered no testimony. The court instructed the jury that under the undisputed evidence introduced by the prosecution defendant was as a matter of law guilty as charged. The jury so found.
The material part of the sworn complaint on which the search warrant was based is as follows:
‘Certain of the goods and chattels of James Mahar, to wit: thirty bushels of beans were then and there feloniously stolen taken and carried away from the possession of him, the said James Mahar, by some person or persons to said complainant unknown, and that said complainant has just and reasonable cause to believe, and does believe, that the said goods and chattels, or some part thereof, are now concealed in one of the buildings occupied by A. Preuss, on section 30 in the township of Victor in said county; said buildings being occupied as farm barns and outbuildings, and as a dwelling house not used solely as such in the township of Victor in said county, and that the grounds of his said belief are as follows: That said A. Preuss is a suspicious character who has at times hung around the premises of James Mahar, and who was there and ascertained the location of the beans just before the said beans were taken, wherefore said complaint prays,’ etc.
The mandate in the warrant directing the place to be searched and the thing to be searched for followed the language of the sworn complaint.
The sufficiency of the purported statement of fact as ground for affiant's belief under the requirements of our statute can well be questioned. But, passing that...
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State v. Richards, 32729.
...taken. 56 C.J. 1244; Marron v. United States, 48 Sup. Ct. 74, 275 U.S. 192; In re 191 Front Street, 5 Fed. (2d) 282; People v. Preuss, 225 Mich. 115, 195 N.W. 684. (b) Search was at night, for stolen property, under Sections 3769 to 3771, Revised Statutes 1929. Section 3771, which regulates......
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State v. Richards
... ... 56 ... C. J. 1244; Marron v. United States, 48 S.Ct. 74, ... 275 U.S. 192; In re 191 Front Street, 5 F.2d 282; People ... v. Preuss, 225 Mich. 115, 195 N.W. 684. (b) Search was ... at night, for stolen property, under Sections 3769 to 3771, ... Revised Statutes ... ...
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Brooks v. State
...be seized under the authority of that warrant because it does not come within the description of the warrant. See People v. Pruess, 225 Mich. 115, 195 N.W. 684 (1923); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The rule is otherwise, however, when an executing ......
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People v. McDonald
...search for weapons and fruits of the crime. As to the seizure of articles beyond the scope of a warrant, compare People v. Preuss (1923), 225 Mich. 115, 120, 195 N.W. 684, with People v. Alicki (1948), 321 Mich. 701, 33 N.W.2d 124.Generally, see Annotation: Lawfulness of search of motor veh......