State v. Rice
| Decision Date | 25 April 1925 |
| Docket Number | 5693. |
| Citation | 235 P. 716,73 Mont. 272 |
| Parties | STATE v. RICE. |
| Court | Montana Supreme Court |
Appeal from District Court, Custer County; S.D. McKinnon, Judge.
Floyd Rice was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.
H G McIntire, of Helena, and Homer G. Murphy, of Great Falls, for appellant.
L. A Foot, Atty. Gen., A. H. Angstman. Asst. Atty. Gen., and Rudolph Nelstead, Co. Atty., for the State.
On June 7, 1924, the county attorney of Custer county filed an information in the district court, charging the defendant with the offense of unlawfully possessing intoxicating liquor, alleged to have been committed on that day. On June 26, 1924, the defendant entered a plea of not guilty to the information. The case came to trial on September 10, 1924 and resulted in a verdict of guilty, upon which judgment was rendered and entered, from which the defendant has appealed.
Defendant's main contention on this appeal is that the court erred in allowing the state to introduce in evidence five bottles of beer which had been obtained under search warrant proceedings.
It appears from the recitals contained in defendant's bill of exceptions that on June 7, 1924, the county attorney appeared before a justice of the peace of Miles City township, Custer county, and made an affidavit in the usual form that he had just and probable cause to believe and did believe that intoxicating liquors were unlawfully kept for sale at a certain described building located in Miles City, which was in the possession of John Doe, and was being used as a place for the sale of such liquors and for no other purpose, and as reasons for his belief stated that one Heath, whose deposition accompanied the affidavit, declared therein that he (Heath) had purchased two bottles of beer from said John Doe in said building, for which he paid 50 cents each. The deposition of Heath was taken before the justice on the same day, and in it he declared that he had visited the premises described in the affidavit of the county attorney which were commonly known as the "Beer Shack," and there purchased from the person in charge two bottles of beer, for which he paid 50 cents each. The deposition of the county attorney was also taken before the justice, and in it he gave the legal description of the premises known as the Beer Shack. Upon these papers the justice of the peace issued a search warrant.
The affidavit of the county attorney is entitled:
"The State of Montana ex rel. Rudolph Nelstead, County Attorney of Custer County, plaintiff, v. John Doe and Certain Intoxicating Liquors, Utensils, Furniture, and Fixtures, defendants," and recites that "the building is in the possession of and occupied by said John Doe."
The search warrant recited the filing of the affidavit of the county attorney; that it is made to appear thereby and by the depositions and evidence taken in support thereof that intoxicating liquors were possessed and kept for sale in the premises which were particularly described, "and that one H. E. Heath did * * * purchase intoxicating liquors from the above-named John Doe at and in said building above described." The balance of the warrant follows substantially the requirements of section 11072, Revised Codes of 1921.
On June 9, 1924, the sheriff made his return on this search warrant to the effect that he had served the same and had found in the building described in the warrant three full cases of beer and other property consisting of empty beer cases, empty bottles, glasses, bar towels, etc., which he took into his possession and held subject to the order of the court; also that when he made the search and seizure he found Floyd Rice in possession of the premises, upon whom he served the search warrant and to whom he gave a receipt for the seized property.
On June 10, 1924, the justice of the peace filed the complaint, depositions, search warrant, and the sheriff's return thereto in the district court. Subsequently the judge of the district court, on motion of the county attorney, ordered that the 28th day of June, 1924, at 10 o'clock a. m., in the courtroom of said court, be fixed as the time and place of hearing said return, to determine the ownership of the articles mentioned therein, whether or not they were unlawfully possessed for the purpose of violating the prohibitory laws of the state, and to determine why the same should not be confiscated and destroyed according to law. By stipulation this hearing was continued until June 30, at which time Floyd Rice appeared before the court with his counsel and made the following motion:
"Comes now the defendant and respectfully moves the above-entitled court for an order quashing the search warrant herein involved and to suppress from use as evidence against this defendant any and all things seized by virtue of said search warrant for the following reasons."
Various grounds of alleged irregularity were set forth in the motion, which concludes as follows:
"Wherefore the defendant Floyd Rice prays that said search warrant proceedings be quashed, and particularly the defendant Floyd Rice prays that the property obtained by means of said search warrant be suppressed from use as evidence against him in the companion case now pending trial in the above-entitled court, wherein the defendant Floyd Rice is accused of unlawful sale and possession of intoxicating liquors."
As a result of this hearing the motion of Floyd Rice was denied, and the court entered a judgment to the effect that all of the articles seized by the sheriff under said search warrant were declared forfeited, and the sheriff ordered to destroy them after the trial of Floyd Rice upon the charge against him of unlawfully selling and unlawfully possessing intoxicating liquors.
At the opening of the trial on September 10, 1924, the defendant again presented a motion to suppress the evidence obtained under the search warrant proceedings, which motion was denied.
The testimony introduced by the state at the trial was very brief, and consisted entirely of the evidence secured under the search warrant. It is not necessary to even summarize this testimony. If it was properly admitted, it was sufficient to sustain the judgment. Counsel for the state urge that defendant is precluded from questioning the propriety of admitting this testimony, for the reason that he did not take timely proceedings for its suppression prior to the...
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