Commonwealth v. Leddy

Chapman, C. J. 1. The averment that the building was occupied by the defendant “as a place of common resort kept therein,” is sufficient within the Gen. Sts. c. 86, §§ 42, 43. In Commonwealth v. Intoxicating Liquors, 97 Mass. 332, there was no allegation that the occupant appropriated the building to such a purpose. Here there is in substance such an allegation; for it is alleged that the building was occupied by him as such a place. 2. The allegation of the complainant that the facts and circumstances on which his belief is founded, as required by the sections above cited, consist of common report, is sufficient. The facts and circumstances are required to be stated, not as tending to convict the defendant when put upon his trial, but to satisfy the magistrate that there is sufficient cause for issuing a search-warrant, and to enable him to state with reasonable propriety that probable cause has been shown to him for issuing it. His decision is not subject to appeal, and must be regarded as conclusive, unless it appears to be utterly groundless. But common report may be of such a character as to convince any reasonable magistrate that an investigation ought to be made, and that a warrant ought to be issued for that purpose; and as the magistrate is obliged to make an official statement that it appears to him that probable cause has been shown for issuing the searchwarrant, it would be his duty to inquire into the character of the report, and ascertain the degree of its credibility. If it satisfies him, the statute is complied with, and the warrant is 'egal. 3. The barrel which & described in the bill of exceptions as containing the faucet through which ale was drawn by Galligan, was evidently in Galligan’s possession, and not in the possession [384] of the defendant, although it was placed in the apartment which was otherwise occupied by the defendant. The use made of it implies access to it by Galligan, as well as an exclusive possession of it by him. The searchwarrant would therefore extend to that part of the cellar which contained it, including the doorway that led to it. The defendant could not protect it from seizure by allowing him to keep it where it was; and in resisting the officer when he went to seize it, he committed an assault and battery. Exceptions overruled.