State v. District Court of Fourth Judicial Dist. In and For Missoula County

• Decision Date: 29 March 1924
• Docket Number: 5497.
• Citation: 224 P. 866,70 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

224 P. 866

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 "testimony" the justice issued a warrant commanding the officer to make search of the premises described. On the same day the sheriff made return that he had served the warrant upon Mrs. William Thibodeau at 906 Alder street, in the city of Missoula, the premises described in said warrant, that he had searched the premises therein described, and had seized certain property, a list of which he set forth in an inventory attached to the return. This inventory shows that he seized a considerable quantity of moonshine whisky, beer, wine, kegs, bottles, jugs, and the like.

On August 31, 1923, the justice of the peace filed with the district court the complaint, deposition, search warrant, return, and inventory, as he was required to do by section 12413, R. C. 1921; and on that day the county attorney of Missoula county filed an information in the district court charging Thibodeau with the crime of possessing intoxicating liquors on August 30, 1923. Following the filing of the information Thibodeau was arrested, arraigned upon the information, and required to give bail or suffer imprisonment.

On November 1, 1923, Thibodeau filed in the district court a petition to suppress the testimony obtained by virtue of the search warrant and to preclude its use as evidence against him, and for an order returning the property. After many delays the court denied the petition and assigned for trial the criminal case against him. Whereupon Thibodeau, as relator, filed an application in this court for a writ of prohibition designed to prevent the use of the property seized under the search warrant as evidence. Return of the property is asked also. He alleges that the only evidence in the possession of the state to support a prosecution under the information is that secured by means of the search and seizure. The respondents have appeared by answer.

1. At the outset we are confronted with an objection on part of counsel for respondents against the maintenance of this proceeding. They assert that a writ of prohibition ought not to issue because relator has an adequate remedy by appeal. This upon the theory that (1) he might have appealed from the order denying the petition to return the property, and (2) should he be convicted he will have the right of appeal from the judgment. There is no merit in the first point.

Without entering into an extended discussion of the second point it is sufficient to say that by reason of the facts and circumstances appearing in this record the remedy of appeal is not an adequate remedy immediately available. For reasons which will appear presently, the court cannot render a valid judgment based upon the testimony obtained under the search warrant. The admission in evidence of that testimony (timely application to suppress it having been made) would be reversible error. In State ex rel. Lane v. District Court, 51 Mont. 503, 154 P. 200, L. R. A. 1916E, 1079, this court said:

"Whenever it is made to appear, as in this instance, that under no conceivable circumstances can the district court render a valid judgment" the writ should issue.

Why should the state seek to burden itself with the labor and expense of a useless trial? Why should the citizen, presumed to be innocent, be subjected to the humiliation and expense of a trial when no valid judgment can be rendered against him?

The existence of a remedy by appeal is not of itself a bar to prohibition, unless that remedy be plain, speedy, and adequate. Section 9862, R. C. 1921.

"A remedy is speedy when, having in mind the subject-matter involved, it can be pursued with expedition and without essential detriment to the party aggrieved; and it is neither speedy nor adequate if its slowness is likely to produce immediate injury or mischief. 23 Cyc. 617." State ex rel. Marshall v. District Court, 50 Mont. 289, 146 P. 743, Ann. Cas. 1918C, 164; State v. Jackson, 58 Mont. 90, 190 P. 295.

The writ was issued in State ex rel. Samlin v. District Court, 59 Mont. 600, 198 P. 362, without comment by the court, although over strenuous objection by counsel for the respondents in that case. For the reasons appearing in the Samlin Case, the same appearing here, it seems clear that the remedy by appeal would not be either plain, speedy, or adequate in view of the impending emergency.

2. Upon the merits. The complaint filed by Herrick is not supported by the deposition. While Herrick denominated Thibodeau a bootlegger, he does not make a single positive statement unless we...