State v. Kriegbaum
| Decision Date | 08 November 1927 |
| Citation | 194 Wis. 229,215 N.W. 896 |
| Parties | STATE v. KRIEGBAUM. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Questions Certified from the Circuit Court of Marquette County; Chester A. Fowler, Circuit Judge. Questions answered.
John Kriegbaum, alias John K. Jacobson, was convicted of having privately manufactured distilled and intoxicating liquor in his possession. Before sentence, the trial court certified questions to the Supreme Court. Questions answered.––[By Editorial Staff.]John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and K. J. Callahan, Dist. Atty., of Montello, for the State.
Vincent F. McNamara, of Montello, for defendant.
The defendant, John Kriegbaum, was convicted of having privately manufactured distilled intoxicating liquor in his possession contrary to the statute. Before sentence the trial court certified three questions to this court pursuant to the provisions of section 274.16 of the Statutes.
The first question is: Under paragraph (d), subsec. 32, § 165.01, of the Statutes, providing that “the possession of any privately manufactured distilled liquors without such permit is hereby prohibited,” and subsection 28 of said section providing that “the possession of liquor by any person without a permit, other than in his private dwelling used exclusively as such, shall be prima facie evidence of unlawful possession”: (a) Was the liquor received in evidence as a matter of law privately manufactured distilled liquor? and (b) Was such liquor as a matter of law in defendant's possession without a permit?
[1] (a) Subsection 28, § 165.01, of the Statutes, does not create an offense, but merely establishes a rule of evidence. Endish v. State, 188 Wis. 259, 265, 205 N. W. 822.
The liquor here in question was not found in a private dwelling, but in a soft drink parlor. The analysis made of the liquor by the state chemist determined that the liquor in question was a distilled liquor, with an alcoholic content of 49.5 per cent. Under subsection 28 of section 165.01 of the Statutes, possession of such distilled liquor without a permit is prima facie evidence of unlawful possession. Nelson v. State, 186 Wis. 648, 656, 203 N. W. 343.
[2][3] The fact of the possession of a permit is one to be established by the defendant. Hiller v. State, 190 Wis. 369, 378, 208 N. W. 260. The defendant did not meet the burden of showing that he had the permit, so that we must assume that his possession of the distilled liquor in question in a place other than a private dwelling was without a permit. Under such a state of the record such possession was prima facie unlawful as a matter of law.
[4] Subdivision (a) of the first question is answered “Yes.”
[5] (b) The burden being upon the defendant to show that distilled liquor was lawfully in his possession under a permit, and the defendant not having met such burden, the conclusion follows as a matter of law that the liquor was in defendant's possession without a permit.
Subdivision (b) of the first question is answered “Yes.”
[6][7] The second question is: Was the liquor received in evidence seized in violation of section 11, art. 1, of the state Constitution, providing that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized?”
The liquor in question was seized while a search of the person of the defendant was in progress under a search warrant issued by a justice of the peace which expressly directed that a search be made of the person of the defendant while on the premises described in the warrant.
We express no opinion as to the power of a court of general jurisdiction to issue a warrant to search the person. We are concerned only with the question of whether the person of the individual described in the warrant can be searched under a search warrant issued by a justice of the...
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...600, ¶ 16, 770 N.W.2d 769 (citing Terry v. Ohio, 392 U.S. 1, 12-13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). It cited State v. Kriegbaum, 194 Wis. 229, 232, 215 N.W. 896 (1927), for the proposition that the exclusionary rule prohibits evidence obtained pursuant to a warrant issued by a judge ......
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