State v. Nielsen

• Decision Date: 30 January 1920
• Docket Number: 4431.
• Citation: 187 P. 639,57 Mont. 137
• Parties: STATE v. NIELSEN et al.
• Court: Montana Supreme Court

187 P. 639

57 Mont. 137

STATE v. NIELSEN et al.

No. 4431.

Supreme Court of Montana

January 30, 1920

Appeal from District Court, Silver Bow County; John V. Dwyer, Judge.

Forfeiture proceedings by the State of Montana against George Nielsen and certain intoxicating liquors, claimed by Edith Nielsen. From judgment ordering the liquors destroyed, and from an order denying new trial, claimant appeals. Affirmed.

Wm Meyer, of Butte, for appellant.

S. C Ford and Frank Woody, both of Helena, and N. A. Rotering, F L. Riley, and A. C. McDaniel, all of Butte, for respondent.

HURLY J.

Proceedings were instituted in the district court of Silver Bow county under the provisions of chapter 143, Laws of 1917, by the filing of an affidavit alleging that one John Doe Nielsen the occupant of room 421, Hotel Leggat in the city of Butte, "did at, and does now, on and in said premises, sell, exchange, give away, barter, furnish, and otherwise dispose of intoxicating liquors in violation of the laws of the state of Montana, and did then and there and does now, therein and thereon, keep, possess, and deposit intoxicating liquors with intent to sell, exchange, give away, barter, furnish, and otherwise dispose of said liquors in violation of the laws of this state," etc. Upon this affidavit a search warrant was issued by one of the judges of said court, to which return was made reciting that certain intoxicating liquors were found in said premises, consisting of 24 packages, each said to contain 24 pint bottles of whisky, in the possession of one George Nielsen. Thereafter Edith Nielsen, wife of said George Nielsen, made claim for said liquors, alleging that she was the sole owner thereof, and that the same had been acquired by purchase prior to the 31st day of December, 1918, and that none thereof was used or intended to be used contrary to the provisions of our statute with relation to intoxicating liquors.

After trial, judgment was entered ordering the liquors destroyed. From the judgment and order denying a new trial, appeal was taken.

Upon the trial, in behalf of the state, the search warrant and the return thereto were admitted in evidence and Ed Morrissey, a detective for the city of Butte, testified that he searched the premises in question, finding the whisky therein, and that on the night of the seizure Mr. Nielsen illegally sold liquors other than those seized. Testimony was offered in behalf of the claimant that on December 30, 1918, Mrs. Nielsen purchased 28 packages or cases of whisky, each containing 24 pints, giving as payment therefor a certificate of deposit issued to her by the First National Bank of Butte. Mrs. Nielsen further testified that three cases of this liquor had been stolen while she was residing at the Tait Hotel before removing to the Leggat Hotel, and that she had used one case thereof between the date of purchase and the date of seizure, the 19th of March.

The liquor when seized was in a closet in the room occupied by the Nielsens, in the Leggat Hotel, was sewed in gunny sacks each sack containing 24 pint bottles, and defendants testified that no one had the key to such closet except the Nielsens, and both husband and wife denied that any sale of this whisky had been made. It further appears that on the night of the seizure George Nielsen was apprehended making an illegal sale of 24 pints of whisky, though the whisky sold was of a different brand than that seized under the search warrant. Nielsen testified that one Wise delivered to him in a gunny sack similar to those in the closet the whisky which he sold; that after its delivery to him by Wise he took it to his room in the Leggat Hotel, and there placed it in a suit case, afterwards taking it from the room and making delivery to one Heimie, the purchaser thereof, in the alley back of the hotel; that he had never sold any other whisky, and that in handling the sale in question he was merely acting for the accommodation of Wise. In rebuttal, the state, in addition to proving the sale to Heimie, offered testimony to the effect that when the officers arrived at the hotel and asked Nielsen the number of his room, Nielsen told them that the room was numbered two hundred and something, instead of giving the correct number. There is, however, some conflict on this question, one of the officers...