State v. Bartlett , 47 Me. 388 ( 1860 )

The opinion of the Court was drawn up by

Rice, J.

Objections are made, in a motion to quash, and also in a motion in arrest of judgment, to the complaint and warrant in this case. It is objected that the complaint, which described the offence as having been committed in the year “eighteen hundred and fifty-nine,” is defective, in that it does not state in what era this year occurred. Under the authority cited by the defendant, Commonwealth v. Mc’Loon, 5 Gray, 91, this defect would be deemed fatal. But by c. 1, §4, clause 11, R. S., it is provided that the word “year,” used for a date, means the year of our Lord. This cures that defect.

It is also objected that the place to be searched, and in which said intoxicating liquors are alleged to have been kept and deposited, as set forth and described in said complaint, is not specifically described in said warrant.

The place to be searched is described in the complaint as “ the south store in the brick building situated on the east side of Water street in said Augusta, formerly owned by Arno Bittues, deceased, said south store in said building being now occupied by said Thomas S. Bartlett, and the cellar under said store.”

In the warrant, the description is in all respects the same, with the exception that the name of Arno A. Bittues is used in the place of Arno Bittues.

By § 5, art. 1, of the Constitution of this State, it is provided that no warrant to search any place, or to seize any person or thing, shall issue, without a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause, supported by oath or affirmation.

In State v. Robinson, 33 Maine, 564, it was decided that that cannot be considered as a special designation of the place, which, if used in a conveyance, would not convey it, and which would not confine the search to one building or place. Or, to state the proposition affirmatively, the Constitution requires that the warrant shall contain as specific a description of the place to be searched as would be required to convey a specific piece of real estate, in an instrument of conveyance.

Tested by this rule, the objection cannot prevail. The substance of the objection is that there is repugnance between the description in the complaint, and the description in the warrant, in the name of the person who formerly owned the store to be searched.

In giving construction to a deed, where several particulars are named, descriptive of the premises, if some be false or inconsistent, and the true be sufficient of themselves, they will be retained, and the others rejected. Vose v. Handy, 2 Mass. 322; Wing v. Burgess, 13 Maine, 111; Abbott v. Pike, 33 Maine, 204.

The complaint and warrant must be construed together, and if the descriptive words are sufficient clearly to designate the place to be searched, independent of the repugnant words, the latter will be rejected. On examination, we are of opinion that such is the fact.

It may be observed tha;t the description of the place to be searched is merely preliminary, and does not constitute a description of the offence alleged to have been committed, nor does it describe the elements of which the offence is composed, and hence does not fall within those strict technical rules which apply to criminal pleadings.

The foregoing constitute the substantial objections to the complaint and warrant, as presented by the motions to quash, and in arrest of judgment.

On the trial, there was evidence introduced by the government tending to show that certain intoxicating liquors were found by the officer serving said warrant, in the. second story of the south half of a brick building, on the east side of "Water street in Augusta, and that the south store on the ground floor of said block was occupied by the defendant; and there was also evidence tending to show that there was a passage by stairs from the ground floor to the second story where said liquors were found, and that said second story was occupied by said defendant for the purpose of storing and keeping said liquors and other goods similar to those in the lower story.

On this part "of the- case, the Judge instructed the jury, that they must be satisfied from the evidence, beyond a reasonable doubt, that said second story or chamber was a part of said south store, and that they would judge from the evidence in the case, with their knowledge or experience as practical men as to how rooms or stores on the ground floor and rooms above in the second story are generally used by merchants, whether said second story or chamber was, in point of fact, a part of said south store described in said complaint.

To this instruction, exceptions are taken. There does not appear to have been any evidence in the case tending to show what was the usage of merchants as to the occupation of rooms in the second story of buildings, the lower rooms of which were occupied as stores; nor that any such usage existed in fact. Nor was there any evidence as to the knowledge or experience of the jury upon that subject.

It was probably the intention of the Judge to limit the jury to a consideration of the evidence in the case,- viewed or construed in the light of their knowledge or experience as practical men in such matters. The language used is, however, susceptible of a different construction; a construction which would authorize, and perhaps require, the jury to act upon their knowledge or experience, as evidence in this case. Indeed, such seems to be its natural construction. On this point, therefore, the jury may have been misled, and have based their verdict as well upon their personal knowledge and experience as upon the evidence legitimately in the case. To have done so, would have been clearly erroneous. Eor this cause, the exceptions are sustained, and a new trial granted.

Tenney, O. J., and Cutting, May, Goodenow, and Davis, JJ., concurred.