State v. Jokosh

• Decision Date: 05 June 1923
• Citation: 181 Wis. 160,193 N.W. 976
• Parties: STATE v. JOKOSH.
• Court: Wisconsin Supreme Court

181 Wis. 160

193 N.W. 976

STATE

v.JOKOSH.^*

Supreme Court of Wisconsin.

June 5, 1923.

Error to Municipal Court of Milwaukee County; S. E. Smalley, Judge.

George Jokosh was convicted of having intoxicating liquor in his possession, and brings error. Reversed and remanded, with directions.

Plaintiff in error, called the defendant, was charged with having intoxicating liquor in his possession, and was convicted and sentenced. It appears that on October 22, 1922, he was in charge of a place for the sale of soft drinks operating under a class A permit at 417 State street, Milwaukee, owned and run by one Pecha who held the license. In the absence of the defendant, two U. S. prohibition officers and a member of the police force of Milwaukee entered the place, and a few minutes later Police Officer Czernia entered, having a search warrant for 417 State street. There is no dispute in the evidence as to the facts. The manner in which the police came into possession of a bottle of intoxicating liquor which constituted the evidence against him is thus described by Federal Prohibition Agent Dorr.

“Agent Currie (a federal prohibition agent) and myself were the first to enter the barroom, and we walked down to the end of the bar, waiting for Officer Czernia, who had the search warrant. And, as soon as Officer Czernia came in, the defendant came in from the rear right entrance, and as soon as he saw Mr. Czernia, Officer Czernia told him he had a search warrant, and he reached for his right rear pocket. We were about, I should judge, about two paces from him, and when he reached for his right rear pocket I grabbed him by the left arm and Agent Currie by the right; and the bottle as I turned him round, you could see what he was grabbing for, the bottle stuck out of his rear pocket. All I did was to pull it out.”

Defendant objected to the receipt of the bottle and contents in evidence on the ground that it was unlawfully obtained from him by means of an unreasonable and unlawful search and seizure, but the objection was overruled. To test the legality of his conviction, he sued out writ of error from this court.A. W. Richter, of Milwaukee, for plaintiff in error.

Herman L. Ekern, Atty. Gen., and George A. Shaughnessy, Dist. Atty., and Eugene Wengert, Asst. Dist. Atty., both of Milwaukee, for the State.

VINJE, C. J. (after stating the facts as above).

[1] It will be seen from the statement of facts that the bottle was taken from the person of the defendant forcibly and against his will and without a search warrant for his person, thus constituting a search and seizure within the condemnation of article 1, § 8, and of article 1, § 11, of the Constitution. Dunn v. Lowe, 203 Mass. 516, 89 N. E. 1046, 133 Am. St. Rep. 326.

The rule is thus stated in 24 R. C. L. 717:

“An unreasonable search is an examination or inspection without authority of law of one's premises or person with a view to the discoveryof stolen, contraband or illicit property, or for some evidence of guilt to be used in the prosecution of a criminal action.”

The search in question satisfies the call of this definition; that is, it was made without authority of law, no search warrant for the person of the defendant having been issued, and it was made for the purpose of discovering contraband property to be used in the prosecution of a criminal action. Search...