People v. Thompson

• Decision Date: 01 April 1927
• Docket Number: No. 163.,163.
• Citation: 213 N.W. 159,238 Mich. 171
• Parties: PEOPLE v. THOMPSON.
• Court: Michigan Supreme Court

238 Mich. 171

213 N.W. 159

PEOPLE

v.THOMPSON.

No. 163.

Supreme Court of Michigan.

April 1, 1927.

Error to Circuit Court, Allegan County; Orien S. Cross, Judge.

Eli Thompson was convicted of keeping a place where intoxicating liquors were stored and possessed, and he brings error. Reversed, and a new trial granted.

Argued before the Entire Bench.

Clare E. Hoffman, of Allegan, for appellant.

John H. Bloem, Pros. Atty., of Allegan, for the People.

WIEST, J.

Defendant was convicted of keeping a place where intoxicating liquors were stored and possessed, in violation of the prohibition law, and prosecutes review on exceptions before sentence. Before trial he moved to suppress the evidence, seized under search warrant, claiming the showing for the warrant was insufficient. The motion to suppress was denied. Defendant alleges error.

We quote from the affidavit made before the magistrate:

‘That affiant is city manager of said city of Otsego, and by virtue of said office is chief of police of said city, and in the course of his official duties has received several complaints from various adult persons, during the past year immediately preceding the date of this affidavit, that intoxicating liquors are being unlawfully made, and possessed, upon and in and about said premises (before described) or some part thereof, and that affiant is familiar with the general reputation of said premises in reference to being a place where intoxicating liquors are kept, and that its present reputation is bad in that respect.’

At this point we pause to point out that search warrants may not issue on rumor or general repute, but only upon facts existing at the time the showing is made for the warrant. People v. Chippewa Circuit Judge, 226 Mich. 326, 197 N. W. 539;People v. Mushlock, 226 Mich. 600, 198 N. W. 203;People v. Musk, 231 Mich. 187, 203 N. W. 865, and cases there cited. What we have quoted from the affidavit was no showing at all for the warrant, but the affidavit further stated:

‘That affiant is familiar with the odor of whisky mash or grain mash, a concoction out of which whisky, sometimes known as moonshine or home brew whisky, is made, having handled large quantities of the same; that on the 10th day of May, 1926, while affiant was in the Al Burgess store by invitation, which said Burgess store adjoins said premises as aforesaid, and was near the building on said premises he smelled and detected a strong odor of whisky mash coming from the basement and ground floor of said building on said premises, and from the buildings thereon or some part thereof, and affiant says that home brew whisky was then in the process of being made upon said premises by those persons using and occupying the same.’

At the hearing of the motion to suppress, the maker of the affidavit for the search warrant was examined in court, and we quote from his testimony:

‘Q. You say you are familiar with the odor of whisky mash or grain mash? A. No, sir.

‘Q. You are not? A. No; I am not acquainted with it. You asked me if I was acquainted with mash.

‘Q. I asked you if you were familiar with the odor of whisky mash or grain mash? A. Yes; I am acquainted with the smell of something that smells like hard cider, or on that order.

‘Q. Well, did you ever smell any whisky mash? A. No, sir.

‘Q. Or did you ever smell any whisky mash out of which whisky or moonshine was being made? A. No, sir.

‘Q. You never did? A. No, sir.

‘Q. You never smelled the odor of whisky mash or grain mash coming from this Thompson building, did you? A. Well, I smelled something that indicated hard cider.

‘Q. Hard cider? A. I couldn't tell what it was.

‘Q. Now, on the 10th day of May, did you smell some odor coming from this building that was that of whisky mash or grain mash? A. Well, I think that is about the date that I smelled something that didn't smell right to me. * * *

‘Q. You never smelled the odor of whisky coming from the premises did you on the 10th day of May? A. I couldn't tell what it was; I could smell something wrong, but I couldn't tell what it was. * * *

‘Q. Now, the odor that you noticed coming from the Thompson pool room building there, would you say it was like an intoxicating liquor? A. Smelled that way to me; yes, sir.’

This testimony in support of the search warrant measures up to some of our decisions. We are not inclined to hold that, because in the affidavit he stated the odor he smelled was that of whisky mash, and later testified the odor was that of intoxicating liquor there was a fatal variance.

In People v. Schregardus, 226 Mich. 279, 197 N. W. 573, we held that the sense of smell might be employed in detecting liquor upon premises. Later the Legislature, by Act No. 382, Public Acts 1925, enacted:

‘No statement of any person in such sworn complaint or affidavit that such person has smelled the odor of intoxicating liquor in the process of manufacture or otherwise in or about a private dwelling occupied as such, shall constitute probable cause for the issuance of a search warrant under this act for the search of such dwelling.’

This enactment modified our decision only with reference to private dwellings occupied as such. The statute has no application to the case at bar, for the odor smelled was from a pool room and not a private dwelling.

At the trial the court permitted, over objection, testimony that defendant was intoxicated on several occasions during the year preceding the date of the arrest. One witness was permitted to testify that the day before the search warrant was...