State v. Cooper
| Decision Date | 28 December 1926 |
| Docket Number | 6036. |
| Citation | 252 P. 376,78 Mont. 35 |
| Parties | STATE v. COOPER. |
| Court | Montana Supreme Court |
Appeal from District Court, Rosebud County; G. J. Jeffries, Judge.
Anna Cooper was convicted of unlawful possession of intoxicating liquor, and she appeals. Reversed with directions.
Campbell & Carolan, of Forsyth, for appellant.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for the State.
Defendant was convicted upon a charge of unlawful possession of intoxicating liquor. The sheriff of Rosebud county accompanied by his deputies, and the county attorney and his deputy, on December 6, 1925, between 10 and 11 o'clock at night, searched the dwelling house of defendant and her husband for intoxicating liquor. The search was made under a search warrant issued on a complaint against her husband, and the basis for it was an affidavit in which it was stated that the deponent had purchased intoxicating liquor from defendant's husband in the dwelling. It appears that when the officers entered the house a woman was occupying a bed in the bedroom of defendant. The woman had been staying at the Cooper residence about three months, paying board and room. On the dresser in this room was found a pitcher containing moonshine liquor and a glass sitting alongside it, and under the edge of the bed a small porcelain cream can about half full of moonshine. The sheriff gave this receptacle to one of his deputies and the pitcher to his other deputy to care for. At about that time the defendant came in and asked what was going on. The sheriff handed her the search warrant, and told her to read it. There is a conflict in the testimony as to what then transpired, but we shall adopt the version of the testimony which is most favorable to the state, which is that defendant replied that she could not read, and grabbed the pitcher being held by the deputy, and emptied its contents on the floor. Shortly afterwards she struck the deputy who was holding the cream can somewhere about the face and kicked him at the same time, and the can fell and the lid flew off, and only a small amount of its contents was saved. Two bottles each empty except for a trace of moonshine whisky were found in the back room. The defendant left home the evening of the search about 6 o'clock, and did not return until nearly 11. In the meantime she had been riding in an automobile and had attended a moving picture show.
A short time after the search, a complaint was filed, and defendant placed under arrest. On December 15, 1925, an information was filed against her, alleging the unlawful possession to have occurred on the 6th day of December, 1925. The cause came on for trial on June 7, 1926. The articles secured by the officers upon their search and the evidence as to the search were admitted upon the trial, over the objection of defendant that the search was not conducted pursuant to a search warrant directed against her or any of her premises, but in proceedings against her husband, and that the defendant was not present when the articles were found. The defendant concedes the validity of the search warrant proceedings, and that the evidence obtained thereunder would be competent against her husband.
The evidence, having been secured upon a legal search, and being rightfully within the knowledge and possession of the officers was competent, not only against the one named in the search warrant proceedings, but, if material, against any person. There having been no disregard of the law by the officers in securing the evidence, the reason for its rejection was not present.
It is urged by defendant...
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