State v. Scott

Decision Date07 April 1930
Docket Number1604
Citation286 P. 390,41 Wyo. 438
PartiesSTATE v. SCOTT [*]
CourtWyoming Supreme Court

APPEAL from District Court, Goshen County; CYRUS O. BROWN, Judge.

Solon Scott was convicted of owning a still, used, designed, and intended to be used for the unlawful manufacture of intoxicating liquor, and he appeals.

Judgment reversed and case remanded.

For the appellant there was a brief by Everett Taylor and Reid &amp More, of Torrington, and oral argument by Mr. More.

The search warrant was invalid because the affidavit by means of which it was procured, failed to make a showing of probable cause; said affidavit was a printed blanket form, showing on its face that it was made without knowledge as to the allegations contained therein; it recited that the premises were a dwelling house without showing that some part thereof was used as a store, storage room, shop, hotel or boarding house, or was a place of public resort where intoxicating liquors were manufactured, sold, kept for sale, or given away as required by Section 32, Chapter 117, Laws 1921. It failed to recite facts showing probable cause to believe that a crime was being committed and was insufficient. State v Peterson, 194 P. 342. It recited facts in detail, that could not have been known until after a search had been made under the warrant issued pursuant to the affidavit; the premises are described as a building, dwelling house dug-out, garage, and other buildings situated on certain land described showing that the officers had no personal knowledge of liquor or a still and that the warrant was issued to conduct a search in several places, to procure evidence. The petition to suppress the evidence recited that the premises were the home of defendant and it was sworn to in positive defense. The answer admitted that the officer searched the home of defendant, and seized the articles in question therein. The charge in the affidavit was in the disjunctive, in substance, that liquors were manufactured, possessed, sold, furnished or given away. If the alleged liquor was merely possessed in defendant's dwelling or given away, the warrant could not lawfully issue to search the dwelling. The affidavit was insufficient. Thorpe 1926 Ed., page 397, 405, 406, 408 and 418; Voorhies v. U.S. 299 F. 275; Staker v. U.S. 5 F. (2nd) 312; U. S. v. Mitchell, 274 F. 128; U. S. v. Jajeswiec, 285 F. 789; Joswick v. U.S. 288 F. 831; Pressley v. U.S. 289 F. 477; Morse v. Com., (Ky.) 265 S.W. 37; State v. George, (Wyo.) 231 P. 683; Giles v. U.S. 284 F. 208; U. S. v. Kaplan, 286 F. 963; Dumbra v. U.S. 268 U.S. 436. The affidavit was made and warrant issued merely for purposes of discovery. The admission of the evidence was error. Rosencrance v. State, (Wyo.) 239 P. 952. The judgment should be reversed.

For the State there was a brief by Wm. O. Wilson, Attorney General; James A. Greenwood, Deputy Attorney General, and R. J. Jackson, Assistant Attorney General, and oral argument by Mr. Jackson.

The petition to suppress was properly overruled. Section 32, Chap. 117, Session Laws 1921; Section 31, Chapter 117, Session Laws 1921; State v. Crump, 35 Wyo. 41; Fillipelli v. U.S. 6 F. (2nd) 121; Smith v. Mississippi, 162 U.S. 592; Haywood v. U.S. 268 F. 795, 256 U.S. 689; Chicco v. U.S. 284 F. 434; Graham v. U.S. 15 F.2d 740, 274 U.S. 743; Shields v. U.S. 26 F.2d 993, 278 U.S. 633. No error was committed in receiving the liquor in evidence. Tobin v. State, 36 Wyo. 368, 377; Dye v. U.S. 262 F. 6; Jones v. U.S. 296 F. 632; Green v. U.S. 19 F. 840; Herning v. Dist. of Col., 254 U.S. 135; Malacrauis v. U.S. 299 F. 253; Eads v. State, 17 Wyo. 490. No error was committed in receiving the coils in evidence. State v. George, 32 Wyo. 223. The affidavit which is sworn to positively, recites the existence of intoxicating liquors, a still used for illegal manufacture of intoxicating liquor, and quantity of mash intended for such use and manufacture of liquor possessed, sold, furnished or given away in certain buildings including the dwelling house, upon certain lands, and said described articles were found on the premises by the officers. It is unlawful to possess even in one's dwelling house, intoxicating liquor illegally manufactured. State v. Crump, 35 Wyo. 41. Defendant did not prove the legality of his possession. Fillipelli v. U.S. 6 F. (2nd) 121. The complaint is in the language of the statute, Chap. 117, Sec. 32, Session Laws 1921. The Staker case cited by the defendant deals with a federal statute. No evidence was taken in support of the motion to suppress. Smith v. Mississippi, 162 U.S. 592. The motion was unsupported by evidence. Defendant does not claim the property sought to be suppressed, nor asked for its return. Haywood v. U.S. 268 F. 795; Certiorari denied, 256 U.S. 689; Chicco v. U.S. 284 F. 434; Graham v. U.S. 15 F.2d 740; Certiorari denied, 274 U.S. 743; Shields v. U.S. 26 F.2d 993; Certiorari denied, 278 U.S. 633. Proof of defendant's guilt was clear and convincing; the evidence complained of was properly admitted. Tobin v. State, 26 Wyo. 368. Where defendant's guilt is clear, the admission of incompetent evidence will not effect a reversal of the case. Dye v. U.S. 262 F. 6; Jones v. U.S. 296 F. 632; Green v. U.S. 19 F. 850; Horning v. Dist. of Col., 254 U.S. 135; Malacrauis v. U.S. 299 F. 253. Reversals are authorized only for material and prejudicial error, not harmless error. Eads v. State, 17 Wyo. 490. The judgment should be affirmed.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

The defendant was convicted and sentenced on an information charging that he owned a still used, designed and intended to be used for the unlawful manufacture of intoxicating liquor in violation of Chapter 28, Laws of 1927.

The case was tried in the District Court March 20, 1929. February 16, 1929, defendant filed a motion in the form of a petition for the suppression of evidence obtained January 31 in a search of premises which he occupied as a home. The prosecuting attorney filed an "answer" to the petition, and defendant filed a "reply." February 21 the petition was disposed of by an order reciting that the matter came on to be heard on the "petition to suppress certain evidence obtained by an alleged unlawful search and seizure, and upon the answer and resistance of the State, and the reply thereto of the defendant," and the court "having examined the files and being fully advised and informed in the premises," the petition was denied. The evidence was used by the State at the trial. The defendant contends that the denial of the petition to suppress was error, and that is the only question we need to consider.

The parties evidently assumed that defendant's petition to suppress was a pleading that should be answered by the State, and that the State's "answer" called for a reply. The petition was sworn to by defendant, the answer by the prosecuting attorney and the reply by defendant's attorney. The oath in each instance was that the statements were true as the affiant "verily believed." The State now contends that the petition and reply so verified were no proof of the facts alleged (citing Smith v. Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082), and that, as the record shows no evidence was introduced to establish such facts, the petition was properly denied. The contention cannot be sustained. We may concede that the petition and reply were not proof of the facts alleged, but we think all the material facts on which the defendant relied were either admitted by the so-called answer of the prosecuting attorney or shown by the search warrant and the affidavit that caused the issuance of the warrant.

In the petition to suppress it was alleged that the search warrant was issued without probable cause. If that was so, the evidence obtained by the search should have been suppressed. State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A. L. R. 1284; State v. George, 32 Wyo. 223, 231 P. 683.

The admitted facts are these. On the filing of an affidavit with a justice of the peace, a search warrant was issued for the search of defendant's home premises including his dwelling house and other buildings. In execution of the warrant, the sheriff and assistants searched the premises and seized the property described in the return of the warrant. The seized property was held by the sheriff for use as evidence in the trial of defendant on the charge of owning a still. The affidavit filed with the justice of the peace was in the following form:

"Before me, Francis E. Johnston one of the Justices of the Peace, in and for said County, personally appeared Harold F. DeWitt who being duly sworn according to law, deposes and says, that on or about the 31st day of December, 1928, A. D., in the County and State aforesaid, that intoxicating liquors to-wit: One pint contained in glass bottle or jar, one quart contained in glass bottle or jar; one-half gallon contained in glass bottle or jar; one gallon contained in glass bottle or jar and one gallon or more contained in wooden keg, commonly called moonshine whiskey; a quantity of fermented mash contained in a jar or wooden keg or barrel, intended for use in the illegal manufacture of intoxicating liquor, and one complete still used, designed and intended to be used for the illegal manufacture of intoxicating liquor, commonly called moonshine whiskey, are manufactured, possessed, sold, furnished or given away, contrary to law in a certain building, dwelling house, cave, hen-house, dug-out, garage and other out building; located and situated on the NE 1/4 N 1/ 2 SE 1/ 4 SE 1/ 4 SW 1/ 4 NE 1/ 4 SW 1/4 Section 35 Township 26N Range 62 West Meridian, in Goshen County, State of Wyoming, for the purpose of being sold, furnished, possessed or...

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  • Cordova v. State
    • United States
    • Wyoming Supreme Court
    • October 16, 2001
    ...[¶ 18] This court has never addressed exactly this issue on the basis of art. 1, § 4 of the Wyoming Constitution. In State v. Scott, 41 Wyo. 438, 286 P. 390 (1930), a case applying the state constitution, the court reversed the denial of the defendant's motion to suppress search evidence of......

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