People v. Woodward , 231 Mich. 559 ( 1925 )

Defendant reviews his conviction, on a charge of unlawfully having intoxicating liquors in his possession, on exceptions before sentence.

1. It is urged that the search warrant, under which certain evidence was secured, was issued without authority of law. The warrant described the premises as —

"the two two-story houses, one brown, the other green, on the premises situate, known and numbered as No. 704 Elizabeth street, in the city of Jackson."

It was held in People v. Musk, 221 Mich. 578, that the description in a search warrant must point to a definitely ascertainable place. It is apparent from reading the entire warrant and the affidavit on which it was based that there was a community of occupation of the premises described in the warrant. The names of the occupants were unknown to the affiant, and were stated to be "one John Doe and Richard Roe."

The grounds for the belief of the affiant were thus stated:

"For about a week preceding the date of this affidavit, I have watched the above places. Many men have entered the place sober, only to later come out drunk. I have seen men go into the place to come out later and go down to the railroad tracks near there where they produce bottles of moonshine whisky and drink from them. I have seen this happen from places less than 40 feet distant from them. This latter arrangement I have seen occur at least three or four times in the past week."

Under the warrant, the officer was vested with authority to search the premises described therein. The description was definite. He was not required to exercise any discretion in determining where the search should be made. The buildings apparently were occupied as one place of abode, and were used together as a place of public resort. In our opinion the warrant was properly issued, and authorized the search made.People v. Bawiec, 228 Mich. 32; People v. Flaczinski, 223 Mich. 650; People v. Flemming, 221 Mich. 609, and cases cited. The quotation from Meek v. Pierce, 19 Wis. 300, appearing in the Bawiec Case, is instructive.

2. The grounds for the belief of the affiant above quoted were clearly sufficient. People v. Starkweather, 224 Mich. 137;People v. Schregardus, 226 Mich. 279; People v.Flemming, supra.

3. One of the officers who executed the search warrant testified that when he entered the kitchen the defendant —

"had a tea pot or coffee pot in his hand from which there was moonshine whisky dropping onto the floor."

The trial court read to the jury section 28 of Act No. 338, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 7079 [28]), and instructed them that if the defendant was pouring out a liquid when the officer entered for the purpose of preventing its seizure, they might find his action to be prima facie evidence of the intoxicating nature of the fluid. The charge in this respect was fully justified under the statute.

The record discloses no prejudicial error. The trial court will proceed to sentence.

McDONALD, C.J., and CLARK, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred with SHARPE, J.