State v. Mallett

• Decision Date: 22 November 1923
• Citation: 122 A. 570
• Parties: STATE v. MALLETT.
• Court: Maine Supreme Court

122 A. 570

STATE

v. MALLETT.

Supreme Judicial Court of Maine.

Nov. 22, 1923.

Report from Supreme Judicial Court, Knox County, at Law.

William Mallett was charged with a violation of the prohibition laws. On report Judgment for the State.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

Z. M. Dwinal, Co. Atty., of Camden, for the State.

Adelbert L. Miles, of Rockland, for respondent.

PHILBROOK, J. This is a search and seizure case which originated before a magistrate under the provisions of R. S. c. 127, § 29. When the case was called for trial in the appellate court, a motion to quash was presented and overruled. To this adverse ruling the respondent had no right of exceptions, since the law is well settled that exceptions do not lie to the overruling of motions to quash in criminal cases. State v. Maher, 49 Me. 569; State v. Hurley, 54 Me. 562; Hodge v. Sawyer, 85 Me. 285, 27 Atl. 153.

Thereupon the case was reported to the June (1923) law term of this court, under the provisions of R. S. c. 136, § 27, authorizing questions of law in criminal cases, to be reserved on a report signed by the presiding justice. The report, as thus signed, is as follows:

"The case having been called for trial and a question as to the complaint and warrant of sufficient importance having been urged by the respondent, it was agreed to abide by the decision of the full court. If it should be adjudged bad, a nolle prosequi to be entered; if sufficient, the respondent to stand convicted, unless the law court shall otherwise order.

"The case is made up of the complaint and warrant, together with the agreement that the complaint contains the only statement of the facts or evidence before the judicial officer issuing the search warrant and is admitted to he the sole basis upon which this warrant was issued and that it was issued to search a private dwelling occupied as such."

The real contention of the respondent may be properly stated by an excerpt from his brief, in which he says:

"In the instant case the complainant alleges that he believed that on a day certain, at a place certain, intoxicating liquors were and still are kept and deposited. Upon his mere belief the search warrant was issued, and he prays that due process be issued to search the premises where said liquors are believed to be deposited."

Basing his contention upon certain federal cases, and cases in states other than our own, he claimed that an affidavit for search and seizure made merely upon the belief of the affiant is insufficient, and that, a warrant for search and seizure issued thereon is invalid.

Under the general statute relating to criminal jurisdiction of magistrates, R. S. c. 134, and in section 6 thereof, it is provided that—

"When complaint is made to any such magistrate, charging a person with the commission of an offense, he shall carefully examine, on oath, the complainant,...