Smith v. McNulty

Letton, J.’

Plaintiff was arrested and prosecuted, as shown by the docket of a justice of the peace of Richardson county, upon the charge that he and others named in the complaint, on the 28th day of April, 1919, “did then and there unlawfully have in their possession at a place other than their private residences, to wit, within and being-conveyed by a train of automobiles, consisting of one Cadillac Roadster, No.-, one Cadillac, No.-, one Cadillac, No.-, and one Studebaker, No.-, certain intoxicating liquor, namely, about 3,000 pints of whiskey.

“Second count: And the complainant aforesaid, upon his oath aforesaid, further complaint makes and says that the automobiles described in the first count; were on the 28th day of April, 1919, in the county aforésaid, were, by the persons aforesaid, unlawfully engaged in and used for the transportation of intoxicating liquor.”

The record recites: “The prisoners being before me in open court and all being arraigned on the charge set forth in the complaint entered plea of guilty. Wherefore the court do find the prisoners guilty as charged in the complaint.

“Wherefore the court finds said defendants guilty as charged and that the three automobiles containing said intoxicating liquor are a public nuisance. It is the judgment of the court that said defendants pay a fine each of $100 and costs taxed at $13.20 and stand committed until said judgment is satisfied. It is further ordered and adjudged by the court that the three automobiles be sold at public sale as provided by law, and that tbe intoxicating liquor found in the possession of said defendants be destroyed.”

The fines were paid and defendants discharged. Smith began this action against the sheriff to obtain possession of one of the seized automobiles.

The gist of the argument of the appellant is “that the appellant was not charged with the illegal transportation of intoxicating liquor, and that no judgment upon such a charge was entered against him;” that plaintiff pleaded guilty to the illegal possession of liquor and that such a plea is no basis for an order to sell the automobile, and that the order to sell is absolutely void. This argument is based upon a misapprehension of the record and of the statute. The first count charges that the liquor was unlawfully in the defendant’s possession, and was “within and being conveyed” by a train of automobiles, etc.; and the second count charges that the automobiles were unlawfully engaged in and used for the transportation of intoxicating liquor.

In Robinson Cadillac Motor Car Co. v. Ratekin, 104 Neb. 369, 374, in considering section 2, ch. 109, Laws 1919, under which this prosecution was conducted, it is said: “Upon conviction of the owner or person in charge of the car his guilt is imputed to the vehicle, and under the act it is forfeited and ordered sold by the court.” Paragraph 5 of the syllabus of this case is: “The forfeiture of an automobile under section 2, ch. 109, Laws 1919, is no part of the sentence imposed by the justice of the peace, but is an incident to the conviction of the owner or person in charge of the car.” It is stipulated that at the time of the seizure, the plaintiff was the owner of and in possession of the property replevied.

Under the statute every automobile engaged in, or used, for the unlawful transportation of intoxicating liquor is declared a common nuisance, and it is provided, section 2, ch. 109, Laws 1919: “The vehicle and the liquor so seized shall not be taken from the possession of any officer seizing and holding the same by writ of replevin or other proceedings. Final judgment or conviction in such criminal action shall be in all cases a bar to any suits for the recovery of any vehicle so taken,” etc. Under this provision of the statute, the plaintiff has no standing in court for the recovery of the seized automobile.

The judgment of the district court is

Affirmed.