State v. Gardner

• Citation: 240 P. 984,74 Mont. 377
• Decision Date: 28 October 1925
• Docket Number: 5755.
• Parties: STATE v. GARDNER.
• Court: Montana Supreme Court

240 P. 984

74 Mont. 377

STATE v. GARDNER.

No. 5755.

Supreme Court of Montana

October 28, 1925

Appeal from District Court, Custer County; S.D. McKinnon, Judge.

Frank Gardner was convicted of unlawfully manufacturing and possessing intoxicating liquors, and he appeals. Reversed and remanded for new trial.

Spaulding & McConnell, of Helena, and Frank Hunter, of Miles City, for appellant.

L. A Foot, Atty. Gen., S. R. Foot, Asst. Atty. Gen., and Rudolph Nelstead, of Miles City, for the State.

HOLLOWAY J.

On January 28, 1925, the county attorney of Custer county appeared before the judge of the district court of that county and made and verified a complaint in which he stated:

That "he has just and probable cause to believe, and does believe, that intoxicating liquor is now unlawfully manufactured and sold and otherwise disposed of in the following described premises (particularly describing them), which said dwelling house is in the possession of Frank Gardner and Mrs. Frank Gardner. That the following are the reasons of his belief, to wit: That one Mrs. Arthur Dermid did on or about the 3d day of January 1925, see intoxicating liquors in the possession of said Frank Gardner and Mrs. Frank Gardner, which were then and there unlawfully manufactured and unlawfully sold by the said Frank Gardner and Mrs. Frank Gardner in the dwelling house above described, and that the said Mrs. Arthur Dermid did then and there see intoxicating liquors sold by the said Frank Gardner and Mrs. Frank Gardner in said dwelling house above described."

At the same time Mrs. Arthur Dermid made affidavit:

"That on or about the 3d day of January, 1925, she saw intoxicating liquor in the possession of one Frank Gardner and Mrs. Frank Gardner in the following described premises (particularly describing them), and which said intoxicating liquor was then and there unlawfully manufactured and sold by the said Frank Gardner and Mrs. Frank Gardner, and that affiant at the same time and place saw intoxicating liquor sold by the said Frank Gardner and Mrs. Frank Gardner in the dwelling house hereinbefore described. Affiant saw then and there jugs and bottles containing intoxicating liquors delivered by said Gardners to other persons and money as consideration therefor given to the Gardners."

Upon the complaint and affidavit the judge caused a search warrant to issue which was served on the same day. The premises occupied by Frank Gardner were searched and a still, some mash, moonshine whisky, containers, and articles used in the manufacture of intoxicating liquor were seized. On the same day an information was filed, which charged Gardner with the offenses of which he was later convicted. In due time he was arrested, arraigned, his plea entered, and the cause set for trial for March 31st. Later it was reset for April 7th and again reset for April 13th and was tried on April 14th. On April 3d Gardner moved the court to suppress as evidence the articles seized and information obtained by the search, and this motion was heard and on April 4th overruled. At the trial, and over the objections of the defendant, the seized articles and the information obtained by the officers under the search warrant were admitted in evidence-indeed, they constituted all of the evidence offered by the state, and upon that evidence the defendant was convicted of unlawfully manufacturing and possessing intoxicating liquor. He has appealed from the judgment, and insists that the court erred, in the first instance, in refusing to suppress the evidence, and erred again in admitting the evidence at the trial.

Section 7, art. 3, of our state Constitution, provides that a search warrant shall not issue "without probable cause, supported by oath or affirmation, reduced to writing." Section 11071, Revised Codes, as amended by chapter 116, Laws of 1923, and section 11104, Revised Codes, are to all intents and purposes identical so far as they are involved in this inquiry, and since the former act is the latest expression of the legislative will, reference to it alone will be made. That act provides that whenever complaint is made to a district judge that the complainant has just and probable cause to believe, and does believe, that intoxicating liquor is now unlawfully manufactured, kept for sale, sold, exchanged, used, or disposed of in violation of any law of this state, with the facts upon which such belief is based, the judge may issue a search warrant.

Notwithstanding the crude form in which the legislative intention is expressed, it is apparent from this act in its entirety, and it is also elementary that it must appear to the magistrate that probable cause exists, and to this end the statute requires that the facts which show probable cause must be stated in the complaint or affidavit. State v. English, 71 Mont. 343, 229 P. 727.

It could not be questioned that the complaint and affidavit now before us do set forth facts sufficient to convince the judge on January 28th that probable cause existed to believe that Gardner had violated the liquor laws on January 3d, but the statute speaks in the present tense; that is to say, it must be made to appear to the magistrate that the law is being violated at the time the warrant is issued. State ex rel. Stange v. District Court, 71 Mont. 125, 227 P. 576.

Neither the Constitution nor the statute requires that the showing must be made by direct evidence or that it must be sufficient to justify a conviction. The law is satisfied if, by legal evidence, direct or circumstantial, it is made to appear that probable cause exists to believe that the statute is being violated.

The term "probable cause," like the term "reasonable doubt," is exceedingly difficult to define with any degree of precision. As a reasonable doubt signifies a doubt founded in reason, so probable cause means cause which is probable. The word "probable" means "having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt." Webster's International Dictionary. The following definition has been quoted by this court:

"Probable cause is knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of."

Probable cause does not depend upon the actual state of the case in point of fact, for there may be probable cause to believe that one is guilty of a crime although subsequent events disclose that he is innocent. It is sufficient that the belief exists and that it is supported by facts and...