State v. Minnehan

Peters, C. J. Tin’s is a search and seizure process wherein the premises to be searched are described as follows: "The dwelling-house and its appurtenances occupied by her, said Elizabeth Minnehan, and situated on the east side of Blake Street, in said Lewiston.” In the trial, evidence was introduced tending to show that the premises searched were those actually occupied by the. defendant as a dwelling-house; that said dwelling-house was east of Blake Street; that said house was not next to Blake Street on its easterly side; but that between said house and said Blake Street was another house, not occupied by the defendant, and a space of about twelve feet between the two houses ; that the approaches to the dwelling-house occupied by the defendant were by a passage or alley-way running to it from Blake Street; and that all the doors of the premises searched opened on to the alley way. The counsel contended that there was a fatal variance between the description in the warrant and the description of premises proved. The judge ruled, substantially, that the jury would be authorized to find that there was no variance, if the evidence be believed. There is really no variance. At most, there is a slight diminution of description in the warrant, not misleading at all. The warrant does not necessarily call for a location of the house immediately upon the street, but on the east side of it. It is — 312 — on the east side of Blake Street, and is the house occupied by the respondent. The description as a whole would lead the officer serving the warrant to the correct house. The description would have been practically perfect had these words been added to it, "and connected with Blake Street by an alley running from the house thereto.” But that fact was easily ascertainable upon an examination of the locality. Exceptions overruled. Walton, Virgin, Libbey, Haskell and White house, JJ., concurred.