State v. Noah

• Decision Date: 06 December 1928
• Docket Number: 21336.
• Parties: STATE v. NOAH.
• Court: Washington Supreme Court

272 P. 729

150 Wash. 187

STATE v. NOAH.

No. 21336.

Supreme Court of Washington

December 6, 1928

Department 1.

Appeal from Superior Court, Okanogan County; C. H. Neal, Judge.

R. L Noah was convicted of manufacturing moonshine whisky with intent to sell, and he appeals. Affirmed.

Wilson C. Gresham, of Okanogan, for appellant.

H. A Davis, of Okanogan, for the State.

TOLMAN J.

Appellant was charged in justice court in one court with the offense of manufacturing moonshine whisky with intent to sell, and in a second count with the possession of a still used and intended to be used in the manufacture of such liquor. Upon conviction, he appealed to the superior court. There he filed a petition to suppress evidence, in which he alleged: 'That during all times herein mentioned the said defendant was and now is in possession of Lots 3 and 4 of Sec. 2, T. 34, N. of R. 26, E. W. M., said defendant residing thereon with his family and having complete possession of said premises.' And further set forth other facts, as will later appear, which it is contended show the search warrant under which the search and seizure were made to have been void and wholly insufficient.

The allegation quoted shows possession of the premises described to have been in the accused, and that he resided thereon with his family. Whether that is sufficient to bring the whole of the described premises within the protection of the Federal and State Constitutions we need not now decide. The Bill of Rights of the Federal Constitution in article 4 provides:

' Unreasonable Searches Prohibited.--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 warrants 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.'

And our State Constitution, in section 7 of article 1, provides:

' Invasion of Private Affairs or Home Prohibited.--No person shall be disturbed in his private affairs, or his home invaded, without authority of law.'

It may well be questioned whether either of these provisions is intended to or does protect the owner of a field, a wood lot, or a pasture from such search, even though he be in possession, but, since that question is not raised or argued here, we leave its determination to a time when the question shall be squarely presented.

1. It is urged that the search warrant was void because the application therefor was presented to the justice outside of the precinct for which he was elected, was there acted upon, and the warrant was there issued. The record seems to establish these facts. It may be admitted that the issuance of a search warrant involves the exercise of judicial functions. State ex rel. Hodge v. Gordon, 95 Wash. 289, 163 P. 772. By Rem. Comp. Stat. § 48, it is provided:

'Every justice of the peace shall keep his office in the precinct for which he may be elected, and not elsewhere, but he may issue process in any place in his county.'

And section 1757 provides:

'The jurisdiction of justices of the peace in all civil actions, except as provided in the preceding section, shall be coextensive with the limits of the county in which they are elected or appointed, and no other or greater, but every justice of the peace shall continue to reside and perform all the duties of his office in the precinct for which he was elected or appointed during his continuance in office.'

In other words, while the jurisdiction of a justice is county-wide, he must reside in his precinct and there establish a definite place for the return of process and for the appearance of those summoned, 'but he may issue process in any place in his county,' so long as such process is made properly returnable. That a search warrant is process can hardly be doubted. 21 R. C. L. 1261, and State ex rel. Hodge v. Gordon, supra.

2. It is next urged that the application for the search warrant was insufficient because it states conclusions and not the facts from which such conclusions might be drawn. The application, in part, reads:

'B. H. Nickell, being first duly sworn on oath deposes and says: That intoxicating liquor is being manufactured, kept, sold, furnished and otherwise disposed of, in violation of the laws of the State of Washington, relating to intoxicating liquors, in, upon and about the following described premises or property, located in Okanogan County, State of Washington, to-wit:

'S-NW Sec. 2 Township, 34, Range, 26, Lots 3 and 4, and in, upon and about the premises and property used, operated and occupied in connection therewith, which premises and property is now being occupied, used and operated by Mr. and Mrs. R. L. Noah.'

In the Hodge Case, supra, this question seems...