State v. Muetzel

• Decision Date: 12 April 1927
• Citation: 254 P. 1010,121 Or. 561
• Parties: STATE v. MUETZEL.
• Court: Oregon Supreme Court

254 P. 1010

121 Or. 561

STATE v. MUETZEL.

Supreme Court of Oregon

April 12, 1927

In Bank.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Otto Muetzel was convicted of possessing intoxicating liquor, and he appeals. Affirmed.

The defendant herein was convicted, in the justice court for Deer Creek district, Douglas county, Or., of the offense of the unlawful possession of intoxicating liquor. From the judgment there rendered he appealed to the circuit court, where he was again convicted. He appeals to this court, assigning error of the trial court in denying his application to return certain contraband goods taken from the defendant's premises, and in refusing to make an order suppressing evidence relating to its possession, in its ruling in admitting certain evidence and in rejecting certain other evidence, and in charging the jury.

Albert Abraham, of Roseburg, for appellant.

Guy Cordon, Dist. Atty., of Roseburg, for the State.

BROWN J.

The sheriff of Douglas county, Or., in the execution of the commands of a search warrant, called to his assistance four deputies and searched the defendant's premises for "mash, still, supplies, equipment, and appliances suitable and used for the manufacture of intoxicating liquor to wit, whisky," and, while so engaged, discovered a barrel of fermenting vinous liquor in the defendant's barn. Concealed in the chicken house they likewise discovered a jar alleged to contain moonshine whisky, and in the dwelling house a number of glass containers which gave forth an odor evidencing that they had formerly held intoxicating liquor. The officers seized one of the containers, the barrel of vinous liquor, and the jar of moonshine, delivered the same to the magistrate issuing the search warrant, and made the following return, duly verified:

"I received the within search warrant and executed the same * * * by searching the premises therein described and taking into my custody about one-half gallon of moonshine whisky and one 50-gallon barrel partly filled with wine, and one gallon jug and one pint bottle with moonshine therein all taken from the possession of Otto Muetzel on said premises."

In the issuance of the search warrant, the magistrate complied with sections 1852, 1853, 1854, and 1855, Oregon Laws. He likewise complied with section 1856 by describing with reasonable certainty the place to be searched, and with reasonable particularity the things to be searched for. The record shows that the sheriff was searching for a still, its equipment and mash, and not for wine or other intoxicating liquor. However, that officer was not a trespasser upon the defendant's premises, and, when he learned that a crime was being committed in his presence, and saw the evidence thereof, he had a right, and it was his duty as a lawenforcing officer, to seize the things that were used for the purpose of committing the crime. The law is properly stated by the federal court in the United States v Camarota (D. C.) 278 F. 388, where it is written:

"The officer, having entered upon the premises without having committed a trespass, and thus being lawfully there, and seeing a crime being committed, had a perfect right, and it was his plain duty, to seize the articles which were being used in committing the crime. In making such seizure, the officer could not do so by virtue of the search warrant, but in the performance of his general duty to prevent the commission of crime."

See, also, the following cases: U.S. v. Borkowski (D. C.) 268 F. 408; Kathriner v. U.S. (C. C. A.) 276 F. 808; Vachina v. U.S. (C. C. A.) 283 F. 35; U.S. v. Rembert (D. C.) 284 F. 996; U.S. v. McBride (D. C.) 287 F. 214; State v. District Court of Ninth Judicial District in and for Gallatin County, 72 Mont. 77, 231 P. 1107; Fletcher v. Com., 196 Ky. 625, 245 S.W. 134; Salt Lake City v. Wight, 60 Utah, 108, 205 P. 900.

So, while it is a general rule that the officer, in executing a search warrant, has no right to seize any property by virtue of such warrant other than that described therein, this does not affect his duty, if lawfully upon the premises, to seize property that he discovers by his own senses is being then and there used as an instrumentality in the commission of a crime. The sheriff's erroneous return should not have affected the admissibility of the evidence.

It is asserted that the court erred in the admission of the evidence showing that the defendant possessed liquor other than that upon which the complaint was based. With certain exceptions designated by law, it is unlawful to possess intoxicating liquor within the state of Oregon. However, we are taught by the doctrine announced in the case of State v. Cox, 91 Or. 518, 179 P. 575, that...