State v. Burke

• Decision Date: 11 January 1877
• Citation: 66 Me. 127
• Parties: STATE v. THOMAS BURKE, appellant. 1876.
• Court: Maine Supreme Court

66 Me. 127

STATE v. THOMAS BURKE, appellant.

1876.

Supreme Judicial Court of Maine.

January 11, 1877

ON EXCEPTIONS.

SEARCH AND SEIZURE complaint and warrant for violation of the liquor law.

The premises to be searched were designated as " a certain dwelling-house and appurtenances." The mandatory clause in the warrant did not contain the latter part of the alternative condition in c. 63, § 35, of the Laws of 1872 " if he shall find liquors, or have reason to believe such person has concealed them about his person," to arrest, etc.; but did contain the direction to arrest, if he found the liquors. Liquors were found both in the dwelling-house and in the wood-house near by. The points were raised by the defendant's counsel, that " appurtenances" did not cover the wood house, and that the warrant was informal. The verdict was guilty; and the defendant alleged exceptions, which appear in the opinion.

W. S Clark, for the defendant, contended that there was not a sufficient designation of place as required by the constitutions of the state and nation, and by the statute, to warrant a search of the out-building. To the point that " " " appurtenances," where used in a conveyance, would not convey a wood-house, he cited State v. Robinson, 33 Me. 564; State v. Bartlett, 47 Me. 388; Washb. on Real Property, vol. II, 664; Johnson v. Rayner, 6 Gray 107; Wolley v Groton, 2 Cush. 305; Whitney v. Olney, 3 Mason 282; Co. Lit. 5; Shep. Touch. 94; Woodman v. Smith, 53 Me. 79; Blake v. Clark, 6 Me. 436; Leonard v. White, 7 Mass. 6; Jackson v. Hathaway, 15 Johns. 447; Harris v. Elliott, 10 Pet. 25; Bou. Law Dict.; Grant v. Chase, 17 Mass. 443.

The extent to which appurtenances will convey land with a building, is a small amount around the building actually necessary for the use and occupation of the building. Maddox v. Goddard, 15 Me. 218. Ammidown v. Ball, 8 Allen 293. Same v. Granite Bank, Id. 285.

L. A. Emery, attorney general, for the state.

BARROWS J.

In the complaint and warrant, the premises to be searched were designated as a certain dwelling-house and appurtenances occupied by the defendant.

It is stated in the exceptions that " the evidence showed that an outbuilding where two jugs, one rum, and one whiskey, of the liquors which were seized upon the warrant were concealed, was distinct and separate from the dwelling-house, but upon the same lot and near to it and used by the respondent mainly as a wood-shed for said dwelling-house. One jug of gin was found in the dwelling-house." Hereupon the defendant requested the judge to instruct the jury that the building where the two jugs of liquor were found, is not covered or included by the description of the place to be searched; and that the respondent cannot be convicted by reasons of his having any possession, ownership, control or knowledge of the jugs found in the outbuilding, except so far as the same may have a tendency to show that the liquor found in the house was for illegal sale; and that the defendant can be convicted only as to the gin found in the house.

The presiding judge declined so to instruct; and told the jury in substance that if the outbuilding was on the same lot with the respondent's house and was occupied by him, and by him used as a barn for his hay and shed for his wood to be consumed in his house, that the outbuilding would properly come into the designation of the respondent's dwelling house and appurtenances, though not annexed to the house proper, but separated from it by an open space or passage-way.

The defendant excepts, and cites State v. Robinson, 33 Me. 564, 570. State v. Bartlett, 47 Me. 388, 393, in which it is rightly held that the special designation of the place to be searched required by the constitution must be such as would, if used in a deed, be sufficient to describe and convey it.

But it is law as ancient as the days of Keble and Saunders that even a garden may be said to be parcel of a house and by that name will pass in a conveyance; and accordingly, in Smith v Martin, 2 Saund. 400, the defendant in error held his judgment and recovered for an injury done to his...