State ex rel. Thibodeau v. Dist. Court of Fourth Judicial Dist. In

• Decision Date: 29 March 1924
• Docket Number: No. 5497.,5497.
• Citation: 70 Mont. 202
• Parties: STATE EX REL. THIBODEAU v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY ET AL.
• Court: Montana Supreme Court

70 Mont. 202

STATE EX REL. THIBODEAU
v.
DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY ET AL.

No. 5497.

Supreme Court of Montana.

March 29, 1924.

Application for a writ of prohibition by the State, on the relation of William Thibodeau, against the District Court of the Fourth Judicial District in and for the County of Missoula, Theodore Lentz, Judge, and the Justice Court of Hellgate Township for the County of Missoula and John Bonner, Justice of the Peace. Writ issued.

Dan J. Heyfron, of Missoula, and W. E. Keeley, of Deer Lodge, for relator.

W. D. Rankin, Atty. Gen., and D. N. Mason, Co. Atty., of Missoula, for respondents.

CALLAWAY, C. J.

Original application for a writ of prohibition. On August 30, 1923, R. E. Herrick, a prohibition enforcement officer, filed with a justice of the peace of Missoula county a complaint for the purpose of obtaining a warrant to search the dwelling house and premises occupied by William Thibodeau. In the complaint this appears:

“That he has just and probable cause to believe, and does believe, that intoxicating liquor is now being unlawfully sold and kept for sale, to wit, at and within a certain dwelling house and outbuildings situated upon the following described property: House No. 609 Alder street in the city of Missoula, Mont., together with the outbuildings at said number situated upon the west one–half of lot 2 and all of lot 3, block numbered 40, in McCormick addition to the city of Missoula, Mont.”

As reasons for his belief he alleged that he “saw the said William Thibodeau engaged in transporting intoxicating liquor to said building, and for the further reason that the said William Thibodeau is engaged in the business of selling and transporting intoxicating liquor from said buildings, and has no other business; that he is engaged at all hours of the night and day in going to and from said premises while conducting said business in violation of the law, all of which is unlawful and prohibited.” In his deposition, given under the requirement of section 12397. R. C. 1921, except as to the description of the premises he sought to search he failed to give any testimony in support of the allegations of the complaint. Having said he had known the defendant for at least three years, he was asked the question, “To your knowledge what has been his business for the past two or three years?” to which he answered, “That of a bootlegger.” He said that during the year 1922 he had occasion to arrest the defendant on two different occasions “while in the act of transporting intoxicating liquor.” Whether the defendant was then unlawfully transporting intoxicating liquor, whether the arrests were or were not justified, does not appear.

“Q. What leads you to believe he is now engaged in the violation of the state and federal prohibition law? A. I have observed him on numerous occasions drive to and from his residence at all hours of the night and load and unload certain goods from his automobile, which I believe contains intoxicating liquor. Q. From your knowledge of defendant's business, would the goods which you have mentioned be any other than intoxicating liquor? A. I don't think so. Q. And from your knowledge of the defendant and his business, do you believe that the trips which he makes to these buildings at all hours of the day and night are for the purpose of violating the law above mentioned? A. I think they are. Q. Would you say that he uses and keeps these buildings for the purpose of violating the law? A. I think he is. Q. And that he now has intoxicating liquor stored there? A. I think so.”

Upon the foregoing...