State v. Stevens , 47 Me. 357 ( 1860 )

The opinion of the Court was drawn up by

Rice, J.

The complaint and warrant are based upon § 14, of c. 33, of the laws of 1858, “for the suppression of drinking houses and tippling shops,” and are drawn with technical accuracy. Under the provisions of this section, the officer holding such warrant was authorized to enter and search the premises described, and, in case liquors were found-therein, to arrest the owner or keeper, and have him forthwith before the magistrate for trial.

The right of the officer to arrest the owner or keeper depends upon the fact, that the liquors described in the complaint are found in his possession in the place to be searched; but that fact is to be proved before the magistrate by competent evidence, under oath, and not by the return of the officer.

•Section 20 of the same chapter also authorizes the officer, to arrest the alleged owner or keeper of liquors, if he is prevented from seizing them by their being poured out or otherwise destroyed, and he is also to make return upon the warrant that he was prevented from seizing said liquors by their being poured out or otherwise destroyed, and to state in his return, as near as may be, the quantity that was poured out or destroyed. This return, however, is not the evidence on which the owner is to be tried. The fact, that the liquors were poured out or destroyed, furnishes a basis which authorizes the arrest, which fact must be proved, as other facts, by competent testimony on oath.

But it is contended that the return must first be made preliminary to and as authority for the arrest. Such is not the requirement of the law, nor would it be a reasonable provision. The officer, with a legal warrant in his hands, is making search for liquors described in his precept. His object is to seize such liquors, if found, but he is prevented by their destruction before his face by their owner or keeper. His duty then is, at once, to arrest the keeper and have him before the magistrate, .and his return will give the reason why he does not also have the liquors in custody, to wit: because they have been destroyed.

It is further objected that the officer does not return that he found any intoxicating liquors on the premises of the defendant, but that he found a “ demijohn containing one gallon more or less, of what I called St. Croix rumwhereas he should have stated in affirmative language, if such were the fact, that he found intoxicating liquors.

Perhaps the return is not in the most approved language. But, as we have already seen, the rights of the defendant do not depend upon the return, but upon other evidence; and, besides, it is not for the defendant, who, by violence, prevented the officer from seizing the liquors found on his premises by their destruction, and thereby rendered it impossible for him to determine with certainty their quality, to object that his return is not sufficiently certain. He cannot be permitted thus to set the officers of the law at defiance, and then come coolly into a court of justice, and cavil at, and take advantage of his own wrongful acts. If he will voluntarily, and by violence, obstruct and resist the ministers of the law, in the legal discharge of their duties, he must not complain if he is dragged before the constituted tribunals to answer for his unlawful conduct.

Exceptions overruled, and

Judgment on the verdict.

Tenney, C. J., and Cutting, May, Goodenow, and Dayis, JJ., concurred.