State v. Grames

AupletoN, O. J. The complaint in this case alleges a finding, by the complainant, a deputy sheriff, of liquors intended for sale in this state in violation of law upon the person of the defendant, a seizure of the same and the subsequent making of a complaint and issuing of a warrant against the defendant, upon which he was arrested. A traveling rumseller is undoubtedly liable for a single sale. He'may be indicted as a common seller. The questions here presented are whether liquors may be seized, without a warrant, on his person, and whether he is liable under any existing statute to the search and seizure process. The seizure was without warrant. By R. S., c. 27, § 34, it is provided that “ in all cases where an officer is authorized to seize intoxicating liquors by virtue of a warrant, he may seize the same without a warrant.” [421] The question then arises, in what cases is the officer authorized to seize intoxicating liquors intended for sale within this state in violation of law by virtue of a warrant duly issued. The answer to this inquiry is to be found in § 35, which pro vides that if any competent witness “shall make complaint upon oath or affirmation before any judge of any municipal or police court, or trial justice, that he believes intoxicating liquors are unlawfully kept or deposited in any place in this state by any person or persons, and that said liquors are intended for sale within this state in violation of law, such magistrate shall issue his warrant, directed to any officer having power to serve criminal process, commanding such officer to search the premises described and specially designated in such complaint and warrant, and, if such intoxicating liquors are there, to seize the same with the vessels in which they are contained. . . > The name of the person so as aforesaid keeping said liquors, if known to the complainant, shall be stated in such complaint, and the officer shall be commanded by said warrant, if he shall find said liquors, to arrest such person or persons, and have him or them forthwith before sucli magistrate for trial.” The complaint must allege a “place in this state” where intoxicating liquors are “ unlawfully kept and deposited ” by a person or persons and “ intended for sale within this state in violation of law.” The liquors are to be kept and deposited by, not kept and deposited upon a person or persons. The person or persons unlawfully keeping and depositing, and the place where the unlawfully kept and deposited liquors are to be found, are obviously separate and distinct. It is one thing to find liquors in a place, and a very different tiling to find them upon a person. A place to be searched is not a person to be searched. “ Premises described and specially designated ” in a complaint and warrant cannot, by any reasonable nse of language, be beld to apply to a person or persons. It is apparent that § 35 does not authorize the search of a person with a warrant. It follows, therefore, that an officer eannot without warrant seize intoxicating liquors from the person, under § 34. By c. 63, § 5, of the acts of 1872, § 35 was amended so [422] as to read as follows: “If any person competent to be a witness in civil suits shall make complaint upon oath or affirmation before any judge of any municipal or police court, or trial justice, that he believes intoxicating liquors are unlawfully kept or deposited in any place in the state by any person or persons, and that said liquors are intended for sale within this state in violation of law, such magistrate shall issue his warrant, directed to any officer having power to serve criminal process, commanding such officer to search the premises described and specially designated in such complaint and warrant, and, if such intoxicating liquors are there found, to seize the same with the vessels in which they are contained, and them safely keep until final action on the same, and make immediate return of said warrant. The name of the person so keeping as aforesaid said liquors, if known to the complainant, shall be stated in such complaint, and the officer shall be commanded by said warrant, if he shall find said liquors, or shall have reason to believe such person has concealed them about his or her person, to arrest such person or persons and have him or them before such magistrate for trial,” etc. It will be perceived that the only change in § 35 consists in the interpolation of these words: “ or shall have reason to believe such person has concealed them about his or her person.” No arrest is to be made unless the liquors are found on the premises specially designated by the magistrate to be searched, or the officer “ shall have reason to believe such person has concealed (them about his or her person.” But, in the latter alternative, the person may be arrested, but there is no provision for searching him. Besides, there could be no warrant for such search, for the officer has not even sworn to such belief. The belief is one arising after the issue of process, and after a failure to find intoxicating liquors upon due search. The only belief sworn to is that they are kept in some designated place — not concealed upon the person of some designated individual. To search the person would be to search without a previous warrant “ supported by oath or affirmation.” This is a search and seizure complaint. No provision is found for issuing such process against liquors concealed upon a person, [423] or for seizing them without process when so concealed. The peripatetic rumseller is liable for his violations of law, blit it is not perceived that he is amenable, or that it was intended that he should be amenable to this process. Complaint dismissed. Walton, Baeeowb, Yibgin and Libbey, JJ., concurred.