State v. Kelly
| Decision Date | 30 January 1920 |
| Docket Number | 4509. |
| Citation | 187 P. 637,57 Mont. 123 |
| Parties | STATE v. KELLY et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John V. Dwyer, Judge.
Search and seizure proceedings by the State against John Doe Kelly Richard Roe, Jennie Doe, and certain intoxicating liquors wherein Lucille Howard made claim to the liquors. From a judgment forfeiting them and ordering their destruction, and from an order denying her a new trial, she appeals. Modified and affirmed.
Walker & Walker and C. S. Wagner, all of Butte, for appellant.
Frank Woody and S. C. Ford, both of Helena, and N. A. Rotering and Frank L. Riley, both of Butte, for the State.
On April 12, 1919, John P. Murphy made complaint to the district court of Silver Bow county that he had reason to believe and did believe, that intoxicating liquors were being kept possessed, and deposited at the Almira Apartments in Butte with the intention that such liquors should be sold, exchanged, given away, or otherwise disposed of in violation of the laws of the state of Montana. The complaint named as defendants, John Doe Kelly, afterwards identified as Joe D. Kelly; Richard Roe, thereafter identified as R. P. Dickerson; Jennie Doe, thereafter identified as Lucille Howard; and certain intoxicating liquors. A search warrant was issued, the premises searched, and a large amount of intoxicating liquors and other property seized. After the return of the warrant, Miss Howard made claim to substantially all of the liquors, and Kelly and Dickerson each made claim to a portion of them. Upon the hearing, claimant Howard demanded a jury trial, which was denied, and from the judgment forfeiting the liquors and ordering them destroyed, and from an order denying her a new trial, she appealed. These questions are presented:
(1) The right of a party claiming the property seized to a trial by jury.
(2) The sufficiency of the evidence to justify the judgment of confiscation.
(3) The right of the state to tax the costs against a party claiming the property; and
(4) A preliminary question of practice, viz. the right of a party claiming the property to move for a new trial.
1. New trial proceedings are purely statutory. Ogle v. Potter, 24 Mont. 501, 62 P. 920. The search and seizure statute (Prohibition Enforcement Act, c. 143, Laws of 1917) makes no provision for a new trial. The general statute governing new trials has to do only with the re-examination of issues of fact arising upon formal pleadings (State ex rel. Culbertson Ferry Co. v. District Court, 49 Mont. 595, 144 P. 159), and, from the very nature of it, cannot have application to a proceeding of this character. The attempted appeal from the order denying a new trial is dismissed.
2. The proceeding authorized by above is instituted by a sworn complaint (section 7) but this does not mean necessarily a formal pleading. It may be in the form of an affidavit (section 8). Upon the hearing, the question for determination is: Were the articles seized, or any of them, used, kept, or possessed by any person with the intention of violating the prohibitory liquor law (section 8)? At such hearing, any person claiming an interest in any of the property seized may appear and be heard, upon filing a verified claim setting forth particularly the character and extent of his interest. The statute does not require or contemplate that any person shall be made defendant either in the complaint (section 7) or in the search warrant (section 9682, Revised Codes). The right of a party to be heard in opposition to the condemnation does not depend upon the fact that he is named a defendant, but solely upon the fact that he presents a verified claim. This proceeding is altogether distinct from the abatement proceeding and criminal prosecution for violation of the liquor laws. From the time of the seizure until final judgment, the liquors are in custody of the law (section 10; 23 Cyc. 298). If the evidence warrants the conclusion that they are contraband, they are subject to forfeiture, and the question of ownership is altogether immaterial. If, however, the court determines that the liquors were not kept with intention to violate the law, the state has then no further interest, except the right of appeal, and no further right to retain possession. It follows that it is not until the court has first determined that the liquors are not contraband that the question of ownership arises, and it arises then only to the extent that a determination becomes necessary to enable the court to say prima facie to whom it will deliver possession. Any one who makes the required claim of ownership becomes a party to the proceeding, to the extent that he may appeal from a judgment of forfeiture, but the determination by the court is not in any sense an adjudication of title as between conflicting claimants, and this is all that we meant by the language employed in State ex rel. Prato v. District Court, 55 Mont. 560, 179 P. 497. These observations are intended to emphasize the character of the proceeding authorized by chapter 143. It is a proceeding in rem against the liquors themselves for their condemnation as forfeited property. It is purely of statutory origin, is civil in nature (section 37), and summary in character. State ex rel. Prato v. District Court, supra; 23 Cyc. 299.
The right of trial by jury in the classes of cases in which it was enjoyed at the time our Constitution was adopted remains inviolate, and is secured to all by section 23, article 3. In all other cases the Legislature may provide for a trial or hearing without a jury. Finch v. Kent, 24 Mont. 268, 61 P. 653.
Such summary proceedings as were known to the common law were not...
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