State v. Creel

• Decision Date: 27 November 1922
• Docket Number: 25522
• Citation: 152 La. 888,94 So. 433
• Court: Louisiana Supreme Court
• Parties: STATE v. CREEL

94 So. 433

152 La. 888

STATE v. CREEL

No. 25522

Supreme Court of Louisiana

November 27, 1922

Appeal from Fifth Judicial District Court, Parish of Winn; R. W Oglesby, Judge.

Grady Creel was convicted of unlawfully having possession of intoxicating liquor for beverage purposes, and he appeals.

Affirmed.

Moss &amp Peters, of Winnfield, for appellant.

A. V Coco, Atty. Gen., and Earl E. Kidd, Dist. Atty., of Winnfield (T. S. Walmsley, of New Orleans, of counsel), for the State.

OVERTON, J. O'NIELL, J.

OPINION

OVERTON, J.

The defendant was tried on a bill of information charging him with unlawfully having in his possession intoxicating liquor for beverage purposes, upon which charge he was convicted, and now appeals.

Defendant did not ask for a bill of particulars to require the state to declare what kind of intoxicating liquor it intended to prove was possessed by him unlawfully for beverage purposes, but filed a motion to quash the bill of information, based on the ground that Act No. 39 of 1921, the act under which he was being prosecuted, is unconstitutional, because it attempts to define the words "intoxicating liquor" by reference to federal legislation, in violation of section 18, article 3, Constitution of 1921.

Defendant does not seriously press the above bill, for, since its presentation to the trial judge for signature, this court has decided that the reference to federal legislation is not in respect to the nine liquors well known to be intoxicating, and expressly named as such, in the act, but to the other liquors and liquids therein mentioned, and that the reference, even though it should be unconstitutional, would not affect the validity of the act in respect to the nine specifically declared to be intoxicating. State v. Coco, 152 La. 241, 92 So. 883. And in State v. Cleary, 152 La. 265, 92 So. 892, it was held, citing the Coco Case, that it was sufficient, in the indictment or information, to prefer the charge in the words of the statute, denouncing the offense, and for that reason it was unnecessary to specify the kind of intoxicating liquor that defendant sold, at least, unless defendant required the state by means of a motion for a bill of particulars, to furnish that information; and it may be said that the same is true, where the charge, as in this case, is the unlawful possession, for beverage purposes, of intoxicating liquor. In such cases, as stated in State v. Cleary, this court will not presume that the liquor charged was not one of the nine liquors specifically named in the act as intoxicating, and concerning which no reference is made to federal legislation to determine whether or not they are intoxicating, to wit, alcohol, whisky, brandy, rum, gin. beer, ale, porter, or wine. If a defendant, in a case in which the bill of information or indictment fails to state the kind of liquor possessed, sold or manufactured, wishes to attack the constitutionality of the reference to federal legislation, he should make it appear that he has an interest in doing so by requiring the prosecution, by means of a motion for a bill of particulars, or otherwise, to state the kind of intoxicating liquor that he is charged with having sold, manufactured, or possessed; and if it then appears that the liquor is one of those to which reference is made to federal legislation, to ascertain whether it is intoxicating, the defendant will have a standing to test the constitutionality of that reference, otherwise not. It may be said that the defendant, in this case, has lost nothing by failing to file a motion for such a bill, since it appeared on the trial that the liquor was whisky, which is one of the liquors specifically declared, in the act, to be intoxicating and is well recognized as such.

The second bill of exception is reserved to the refusal of the judge to order the evidence of the witnesses for the state to be reduced to writing. The judge states that:

"At the beginning of the trial counsel for the accused, without knowing what the state's witnesses were going to swear, made the unusual and, as the court views it, the unwarranted, request that the testimony of the state's witnesses be taken down by the court stenographer or by the clerk in longhand. This request was denied, with the permission for his own stenographer to take it down, and with his right reserved to have the clerk take down any objectionable testimony for the purpose of taking a bill of exception. This right was made use of by the accused in bills Nos. 3, 4, and 5."

The ruling of the court, in refusing the request, was proper. State v. Lowry (No. 25461) 153 La. 177 95 So. 596, this day decided.

Bills of exception Nos. 3 and 5 may be considered together. In the first one mentioned, it appears that the state asked the witness, Bryant Sholars, a deputy sheriff of the parish in which the offense is charged to have been committed, the following question, referring to a search warrant, to wit: "I will ask you, did you serve this warrant?" In the second of the bills mentioned, it appears that R. E. Boyett, a deputy sheriff of the same parish, was called to the witness stand to prove the result of a search of defendant's residence, which was made under a search warrant. Both the question propounded and appearing in the bill first mentioned, and the evidence of Boyett as to the result of the search, brought before this court, in the second bill mentioned, were objected to by defendant on the ground that the warrant was issued by the justice of the peace of ward 1 of Winn parish to search the residence of defendant in ward 7 of that parish, instead of by the justice of the peace of the ward in which defendant's residence is located. The objection was overruled in both instances, and the evidence was admitted.

The position of the defendant is that the justice of the peace of ward 1 has no jurisdiction to issue a warrant to search a residence located in another ward of the same parish, and that evidence obtained by a search made thereunder is inadmissible; the search being in contravention of the Constitutions of this state and of the United States.

The first question to be disposed of under this bill is whether the justice of the peace of ward 1 had jurisdiction to issue the warrant. Section 7 of article 1 of the Constitution of 1921 provides:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no such search or seizure shall be made except upon warrant therefor issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

This section prohibits unreasonable searches and seizures, and prohibits them under all circumstances, unless made under the authority of a warrant, and prohibits the issuance of a warrant, except upon probable cause, supported by oath or affirmation, but it does not undertake to provide what authority may issue it. This is left to the Legislature.

Act No. 39 of 1921, under which defendant is being prosecuted, provides for the issuance of search warrants, in aid of the enforcement of the act. It is there provided that no residence shall be searched, except upon the affidavit of two reliable persons, showing that they have reasons to believe and do believe that it "is being used as a cloak of cover" for the violation of the act, and showing the specific offense that is being committed therein, together with such additional corroborating evidence as the court, in the exercise of of its discretion, may require. When the warrant issues, the officer to whom it is directed is required to seize all intoxicating appellant liquors found on the premises, and such apparatus and equipment found thereon as is designed or intended to be used in the manufacture and sale of such liquors, and to apprehend the keeper of the place, or the person to whom the liquor belongs, and take him before the court that issued the warrant, to await its further orders. This warrant may be issued, under the act, only by "a competent court having the power of a committing magistrate." Section 5, Act 39 of 1921.

From the above provisions of the act, we conclude that the court that issues the warrant must have the powers of a committing magistrate in respect to the particular offense, to secure evidence...