People v. Ziamkowski

• Decision Date: 04 September 1929
• Docket Number: No. 134.,134.
• Citation: 226 N.W. 673,247 Mich. 629
• Parties: PEOPLE v. ZIAMKOWSKI.
• Court: Michigan Supreme Court

247 Mich. 629

226 N.W. 673

PEOPLE

v.ZIAMKOWSKI.

No. 134.

Supreme Court of Michigan.

Sept. 4, 1929.

Error to Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Frank Ziamkowski was convicted of violating the Prohibition Law, and he brings error. Reversed, and defendant discharged.

Argued before the Entire Bench.Richard L. Newnham, of Grand Rapids, for appellant.

Bartel J. Jonkman, Pros. Atty., and Thaddeus B. Taylor, Chief Asst. Pros. Atty., both of Grand Rapids, for the People.

FELLOWS, J.

The sufficiency of the affidavit for the search warrant upon which the liquor in the instant case was seized is the only question before us. It was raised by proper motion to suppress, by objection to the introduction of any testimony, and by motion to discharge defendant at the close of the proofs. After the formal parts alleging affiant's belief it proceeds:

‘* * * And that the grounds of his belief are based on the following facts:

‘That on to-wit, the 15th day of December, 1928, between the hours of 7:55 p. m. and 10:00 p. m., this deponent watched the front and rear doors of the above described premises and saw 12 men enter and 5 leave; that on December 16, 1928, between the hours of 10:30 p. m. and 11:15 p. m., this deponent watched the front and rear doors of the said premises and saw 2 men enter and 3 leave; that on December 17, 1928, between the hours of 7:15 p. m. and 10:00 p. m., this deponent watched the front and rear doors of the said premises, and saw 9 men enter and 4 leave; that on the 18th day of December, 1928, between the hours of 7:00 p. m. and 9:00 p. m., this deponent watched the front and rear doors of the above described premises and saw 6 men enter and 3 leave, one of which was intoxicated; that on December 19, 1928, between the hours of 8:30 a. m. and 10:00 a. m., this depondent watched the front and rear doors of the said premises and saw 4 men enter and 2 leave; that on December 20, 1928, between the hours of 8:30 a. m. and 1:00 p. m., this deponent watched the front and rear doors of the above described premises and saw 6 men enter and 3 leave, one of whom was intoxicated.’

The following cases are relied upon by the prosecution to sustain the sufficiency of the affidavit: People v. Musczynski, 220 Mich. 536, 190 N. W. 730;People v. Warner, 221 Mich. 657, 192 N. W. 566;People v. Schregardus, 226 Mich. 279, 197 N. W. 573;People v. Kerwin, 234 Mich. 686, 209 N. W. 157;People v. Schuitema, 231 Mich. 678, 204 N. W. 709;People v. Willis, 243 Mich. 164, 219 N. W. 609;People v. Mushlock, 233 Mich. 559, 207 N. W. 834. These cases are each and all distinguishable from the instant case. In the Musczynski Case, an affidavit was filed stating that affiant had bought liquor at the place to be searched; in the Kerwin Case, the affidavit stated that affiant had seen liquor taken to the premises during the past twelve hours; in the Willis Case, the affiant had seen persons go upon the premises sober and come away in an intoxicated condition. In all the other cases the affiant has by exercising his sense of smell detected the presence of intoxicating liquor on the premises. This court has held in numerous cases that, in the absence of statute, the detection of the presence of intoxicating liquors on the premises by the use of the sense of smell furnished probable cause for the belief that intoxicants were there present.

Counsel for the state rely on State v. Spaulding, 61 Vt. 505, 17 A. 844, 846, for a definition of the term ‘public resort’ used in a similar statute, and we think what was there said quite appropriate. The court pointed out that it was a ‘delicate undertaking’ to define such a place, but said:

‘The testimony tended to show that this dwelling-house was resorted to by individuals to buy and drink cider, just as they would resort to a grocery or saloon for that...