State v. Hunter

• Decision Date: 04 June 1940
• Citation: 235 Wis. 188,292 N.W. 609
• Parties: STATE v. HUNTER.
• Court: Wisconsin Supreme Court

235 Wis. 188

292 N.W. 609

STATE

v.HUNTER.

Supreme Court of Wisconsin.

June 4, 1940.

Error to review an order and judgment of the District Court of Milwaukee County; Carl Runge, Judge.

Reversed.

The state brings this writ to review an order and judgment of the district court of Milwaukee County entered August 30, 1937, suppressing certain evidence in a criminal case then pending in said court against the defendant George Hunter on the ground that such evidence was illegally obtained under a search warrant, and discharging the defendant. The material facts will be stated in the opinion.John E. Martin, Atty. Gen., and Herbert J. Steffes, Dist. Atty., and Gene L. Green, Asst. Dist. Atty., both of Milwaukee, for plaintiff in error.

James W. Dorsey, of Milwaukee, for defendant in error.

MARTIN, Justice.

On the evening of August 14, 1937, an officer of the Milwaukee Police Department entered the premises occupied by the defendant in the City of Milwaukee to search for gambling devices concealed upon said premises. This entry was made under a valid search warrant duly issued and executed. While said police officer was upon the premises engaged in searching for gambling devices, he discovered a quantity of alcoholic liquor, unstamped as required by sec. 139.03 (8), Wis.Stats.1933. The police officer, by sight, taste, and smell, determined that what he found was alcoholic beverage and that it was unstamped. On August 16, 1937, he made complaint under oath to the district court of Milwaukee County for a warrant to search the premises, which were still occupied by the defendant, to discover such alcoholic beverages as were unstamped as required by law.

As a basis for the search warrant, the police officer was sworn, his testimony was taken, transcribed and filed in the district court of Milwaukee County. The officer testified as to his search of the premises in question on August 14, 1937, for gambling devices, that while in the place, he found, smelled, and tasted whiskey and alcohol contained in cans and jugs; that there was about seven gallons of the illicit liquor. He further testified as to the location and description of the premises and gave a description of the occupant thereof in detail. Upon the testimony of the officer so taken and upon his complaint for a search warrant, the district court issued the search warrant in question.

On the same date, the officer made return to said court of the search warrant so issued in which he certified that by virtue thereof, he searched the premises and found seven gallons of alcohol in two five–gallon cans and one–half gallon of whiskey in a gallon jug; that he then had possession of same subject to the disposition of the court.

On August 17, a criminal warrant was issued out of said court against defendant wherein it was charged that on August 16, 1937, in the County of Milwaukee, Wisconsin, defendant did unlawfully have in his possession with intent to sell, offer or expose for sale, barter, exchange or give away intoxicating liquor within this state, and not for shipment in interstate commerce, or sale, or shipment by a manufacturer to a rectifier of intoxicating liquors, without having first affixed to the containers in which the same was placed the stamps required by Ch. 139, Stats. of 1933, contrary to the statute in such cases made and provided, etc.

The record shows that the defendant was brought before the district court upon said criminal warrant on August 17, 1937, and that before entering a plea to the offense charged in said warrant, defendant made and filed an affidavit of prejudice against the Honorable George E. Page, the judge of said court. Thereafter, and on August 30, 1937, the case came on for hearing, by mutual consent of all parties, before Honorable Carl Runge, one of the judges of the civil court of Milwaukee County, presiding. Thereupon defendant entered a plea of not guilty. Before any witness was sworn or other proceedings had, except entry of the plea of not guilty, defendant's attorney moved to suppress the evidence (the illicit alcoholic liquor) on the ground that same was obtained illegally. The record shows that upon completion of the argument on said motion, the court granted defendant's motion to suppress the evidence, and without further proceedings, and without stating any reason therefore, discharged defendant.

Two questions are presented: (1) Does a writ of error lie on behalf of the state to an adverse judgment of the district court rendered before jeopardy has attached? (2) Was the search warrant properly issued on sufficient evidence disclosed in a previous legal search?

[1] It is important to note that the district court of Milwaukee County is a court of record. Sec. 251.08, Stats.1937, provides for an appellate jurisdiction in the supreme court in all matters of appeal, error or complaint from the judgments of “circuit courts, county courts or other courts of record”. Sec. 358.12, Stats.1937, provides: “A writ of error may be taken by and on behalf of the state in criminal cases: (1) *** (2) *** (3) From any final order or judgment, adverse to the state, made or rendered before jeopardy has attached.”

Sec. 358.13, Stats.1937, provides: “In all cases in which a writ of error is authorized by law to be issued by the supreme court to review any judgment or order in a criminal case, the party entitled to obtain such writ, in lieu thereof, may take an appeal from such judgment or order to the supreme court to obtain such review, by serving notice of appeal and procuring return to...