State v. Rice

• Decision Date: 25 April 1925
• Docket Number: No. 5693.,5693.
• Parties: STATE v. RICE.
• Court: Montana Supreme Court

73 Mont. 272

STATE
v.
RICE.

No. 5693.

Supreme Court of Montana.

April 25, 1925.

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.

STARK, J.

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...