State v. MacOluca

MR. JUSTICE STARK delivered tbe opinion of tbe court. Upon a trial in tbe district court of Custer county tbe defendant was found guilty of tbe crime of unlawfully possessing intoxicating liquor, and from tbe judgment entered on tbe verdict of tbe jury be has appealed to this court. All of tbe evidence produced by tbe state at tbe trial bad been secured under search-warrant proceedings. Prior to tbe date of tbe trial the - defendant bad moved tbe court to suppress this evidence on tbe ground that tbe search-warrant bad been illegally issued. Tbe motion was denied. At the trial all the testimony given by witnesses for tbe state was admitted over defendant’s objection that it bad been unlawfully obtained. Hi Farnum, sheriff of tbe county, called as a witness for tbe state, testified that on June 7, 1924, be searched tbe defendant’s bouse under a search-warrant and found therein two kegs of wine, one containing thirty gallons, tbe other ten gallons and also one jug of wine, all of which be took into bis possession and bad retained, except two samples which be bad delivered to Harry Hoffman, a chemist, for analysis. Mr. Hoffman was called as a witness, and testified that tbe alcoholic content of each of these samples was above eleven per cent. These two samples were identified as state’s exhibits 1 and 2, and as such were admitted in evidence, and thereupon tbe state rested. Tbe defendant, testifying as a witness in bis own behalf, stated that be bad lived at tbe place where tbe sheriff ob *283 tained the wine for about a year and a half; that the wine found by the sheriff was his; that he had made it four or five months previously and had kept it in the premises for his own use. Counsel for defendant have assigned fourteen specifications of error, seven of which have to do only with the action of the court in overruling objections to the admission of the evidence obtained under the search-warrant proceedings. Most of the argument in counsel’s brief is devoted to an effort to show that these proceedings were invalid. The transactions leading up to the issuance of the search-warrant in this matter, and all. proceedings thereunder, including the motion to suppress the evidence obtained under it were in effect the same as those in the case of State v. Rice, ante, p. 272, 235 Pac. 716, and on the authority of that case we hold that the court did not err in admitting the evidence over any of the objections urged against it. Independent of the defendant’s admissions, the evidence was sufficient to support the judgment; and likewise the defendant’s admissions while on the witness-stand would sustain the judgment independent of the testimony introduced by the state. The remaining specifications of error relate to certain instructions given by the court and to certain of defendant’s offered instructions which the court refused to give. "While counsel have called attention to these given and offered instructions in their brief, they have not undertaken to point out wherein the court erred in giving or refusing to give any of them. "We have, however, examined all of them, and do not find where the court erred in its rulings thereon. The judgment appealed from is affirmed. 'Affirmed. Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Matthews concur.