State v. Peterson

Decision Date30 December 1920
Docket Number997,999
Citation194 P. 342,27 Wyo. 185
CourtWyoming Supreme Court

No 997.

RESERVED questions from the District Court of Converse County, HON ERNEST C. RAYMOND, Judge.

Criminal proceedings by the State against Theodore Peterson. Heard upon questions reserved by the District Court of Converse County.

No 999.

EXCEPTIONS from the District Court of Sheridan County, HON. JAMES H BURGESS, Judge.

Criminal proceedings by the state against Theodore Peterson and Charles Romano, on questions reserved by the District Court in the Peterson case and on exceptions by the Prosecuting Attorney to rulings in the Romano case.

Both cases were presented at one hearing because of the similarity of the questions involved.

Case denied.

Harvey, Hawley and Garst, for Peterson.

The search and seizure clause of the prohibition act is violative of Sec. 4, Art. 1, of the State Constitution; all that is required by Section 26 of the act is that the prosecutor shall show that he believes and has good cause to believe that liquors were stored in certain premises; no oath is required; a verification of information on belief does not constitute probable cause; (State v. Boulter, 5 Wyo. 244; Hollivaugh v. Hehn, 13 Wyo. 276); the jurisdiction of the justice of the peace is limited by statute and does not include the issuance of search warrants; the seizure being unlawful, the liquor should be returned, (10 R. C. L. 933; Weeks v. U. S. 34 S.Ct. 341); there is no apparent intention in the law to deprive citizens of the right to possess liquor for their own use, nor that liquor so held should be contraband; an officer may sell intoxicating liquor at judicial sale under attachment or execution, and it may be seized for the owner's debts; (Wildermuth v. Colo. 43 N.W. 889; Nutt v. Wheeler, 30 Vt. 436); an administrator can sell liquor without a license, (Williams v. Troop, 17 Wis. 463), Laws prohibiting sales do not prevent seizure for debts, (State v. Johnson, 38 N.H. 441; Howe v. Stewart, 40 Vt. 145; Fears v. State, 142 Ga. 274); liquor seized under a void law may be replevined, (Cooley v. Davis, 34 Ia. 128; Karr v. Stahl, 5 Kans, 387); prohibitory laws do not apply to sales under judicial process, (17 Ccy. 949); to subject liquors to forfeiture it must be shown that they are held contrary to law, (State v. Robinson, 49 Me. 285; State v. Int. Liq. 40 Ia. 95; Fries v. Porch, 49 Ia. 351); prohibition of sales does not disregard their property character (Dornam v. State, 34 Ala. 216); liquors legally acquired prior to the date the prohibitory act became effective are not subject to seizure; (People v. Wilson 171 N.W. 564; Weeks v. U. S. supra); in the foregoing case there was a seizure of lottery tickets without a warrant and it was held that there was not authority to use the tickets as evidence against defendant.

W. L. Walls, Attorney General, and T. Blake Kennedy, for the State in Case No. 997.

The first reserved question relates to the constitutionality of Sec. 26, Chap. 25, Laws 1919; two vital questions are presented; first, is an affidavit or complaint for a search warrant, sufficient if made upon belief or reason for belief of affiant, and if sufficient is it within the province of the Prosecuting Attorney or Commissioner to determine the element of probable cause? Second, if an affidavit, based upon belief or reason to believe is sufficient and it is not within the province of the prosecutor or commissioner to determine the element of probable cause, it would clearly be the function of the court to determine the element of probable cause, in which event does the act in controversy provide for such determination? An affidavit as a basis for a search warrant, made upon belief is sufficient; (Lincoln v. Smith, 27 Vt. 328; State v. Hobbs, 39 Me. 212; Gray v. Kimball, 42 Me. 299; State v. Plunkett, 64 Me. 534, 537; State v. Divine, 13 A. 128; Com. v. Int. Liq. 105 Mass. 595): what seems to be considered the ruling case upon this point is found in the Indiana reports. (Rose v. State, 171 Ind. 662), the rule is recognized in Iowa, (Koch v. Dist. Ct. 150 Ia. 151). State v. Boulter, 5 Wyo. 245 is readily distinguishable from the case at bar; the point decided in that case was that the Prosecuting Attorney endeavored to disregard the finding of an examining magistrate as to the probable cause, and to himself determine the question of probable cause by filing complaint on information and belief charging a higher degree of crime; but, a complaint on information and belief is sufficient to invoke the powers of a tribunal in determining the question of probable cause, (Lowery v. Gridley, 30 Conn. 450); the same rule is followed in (Dupree v. State, 102 Tex. 455). It is reasonably clear from the language of Sec. 25 of the prohibitory act that it is the province of the court to determine the question of probable cause; our statute, unlike that of Massachusetts, does not require that the warrant recite the finding of probable cause by the court. The jurisdiction of a justice of the peace to issue a search warrant does not appear to be involved in this case; the question of the right of defendant to a return of the liquor cannot be determined upon reserved questions; the question of discrimination attempted to be raised, in that protection from search is given to private residences, is believed to be without merit; the act protects all persons equally who reside in private dwellings from search and seizure, except under certain circumstances.

W. L. Walls, M. L. Blake, and T. Blake Kennedy, for the State in case No. 999.

The exceptions by the Prosecuting Attorney are submitted for review under Sect. 6242-6245 C. S. 1910; exceptions were taken to an order of the trial court directing a return of liquor seized from defendant under the prohibition act; the basis of the ruling was that Secs. 25 and 26 of the prohibition act are in conflict with Art. 1, Sec. 4, State Constitution, relating to search warrants; an affidavit for a search warrant made upon belief or cause to believe of the affiant, is sufficient. (Lincoln v. Smith, 27 Vt. 328; State v. Hobbs, 39 Me. 212; Gray v. Kimball, 42 Me. 299; State v. Plunkett, 64 Me. 534-537; Com. v. Int. Liq. 105 Mass. 595; The ruling obtained in Indiana, Rose v. State, 171 Ind. 662; Koch v. District Court, 150 Ia. 151); the language of Sec. 26 is in fact almost identical with Secs. 6314 C. S. 1910. The Boulter case is not in point; under a similar statute it is held in Connecticut that the intention was to authorize a justice to define probable cause, (Lowery v. Gridlet, 30 Conn. 450). The constitutional provisions does not restrict the power of determining probable cause to the courts; (Dupree v. State, 102 Tex. 455). A reasonable interpretation of Sec. 25 of the act would indicate an intention that court order determine the question of probable cause. The use of the word "shall" as found in the section does not necessarily deprive the court the power or right to determine the element of probable cause; as it may be considered as directory only and not mandatory, 6028 C. S. 1910; courts will not lightly regard an act as unconstitutional. This statute does not require the warrant to recite that there has been a finding of probable cause by the court as is required in some states. (Com. v. Int. Liq. 108 Mass. 19); the prohibition act does not expressly confer jurisdiction upon justices of the peace to issue search warrants; the language used is "any court of competent jurisdiction;" it is true that no express authority is delegated to the Legislature by the Constitution to vest courts of the justices of the peace with power to issue search warrants; a strict interpretation of Section 22, Art. V of the Constitution would seem to exclude the power; but numerous examples may be found where justices of the peace do perform duties either by direction of the statutes, or without it, which do not come within the strict letter of the provision defining the jurisdiction of such court, for example, jurisdiction and forcible entry and detainer; sitting as examining magistrates in criminal cases; the issuance of process for the apprehension of fugitives from justice, 6046 C. S. 1910; none of which are expressly delegated by the constitutional provision referred to; the issuance of a search warrant is intended to assist in law enforcement, quite similar to the function exercised as an examining magistrate. The following cases, however, seem to limit the jurisdiction of the justices of the peace: (Bowers v. Green, 2 Ill. 42; Robinson v. Harlin, 2 Ill. 237; Evans v. Pierce, 3 Ill. 468; White v. Wagar, 185 Ill. 195, 50 L. R. A. 60;) the case of Weeks v. U. S. 232 U.S. 383, is cited as an authority for the return of the liquors seized. This case pertains to the seizure of documents and not to property expressly declared contraband, the possession of which was made illegal by statute; the seizure of liquor under a valid search warrant does not affect the court's jurisdiction nor entitle the owner to recover possession, (Ferguson v. State, 70 Ark. 94), the same rule is followed in State v. Plunkett. Section 7 of the Prohibition Act declares liquor unlawfully manufactured, possessed or transported to be contraband; the return of the liquor was unauthorized, as was the supression of evidence resulting from such return, (State v. Flynn, 36 N.H. 64).

R. G. Diefenderfer, for Defendant in Case No. 999.

Section 25 of the act authorizes the issuance of a search warrant without an affidavit and permits any affidavit made to be verified upon information and belief; it does not require a showing of probable cause before the issuance of the search warrant; the act is lacking in uniform operation;...

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