People v. McCourtney

Sharpe, J. Defendant was arrested without a warrant on February 24, 1922, in a restaurant in the city of Lansing by Police Officer Fenby on the charge of being drunk and disorderly. While being taken to the police station in a patrol wagon, Captain of Police Potter, who was also riding therein, saw fendant pouring a fluid from a bottle in his possession on the floor of the wagon. From the smell he believed it to be moonshine whisky. He “leaned over and grabbed the bottle.” He sopped up some of the fluid from the floor and testified positively, both from taste and' smell, that the liquid was moonshine whisky. Complaint charging unlawful possession was made, and warrant issued. An examination was had and defendant bound over to the circuit court for trial. On arraignment on May 16th, he pleaded guilty and was remanded for sentence. On May 20th, he asked leave to withdraw his plea. Permission was granted and on further arraignment he stood mute and a plea of not guilty was entered by order of the court. He here reviews his conviction and sentence by writ of error. When the jury were impaneled, his counsel moved for his discharge, for the reason— “that the testimony on the examination shows that the arrest was made without a warrant and the only evidence of defendant’s condition at the time was that the officer said he was drunk, * * * that the search of defendant’s person and the seizure of his property, as alleged, was all based upon an illegal arrest and evidence illegally procured, directly or indirectly, by an illegal arrest.” [552] The captain of police had testified positively that defendant was “drunk, intoxicated” in his presence. The arrest was therefore justified. No search of his person was made, nor was the bottle taken possession of until the nature of its contents was revealed to the officer. The court very properly overruled the motion. The trial proceeded. Both officers testified positively that the fluid poured out of the bottle was moonshine whisky. No other witnesses were sworn. Defendant’s objection to the introduction of the bottle in evidence and the assignment of error based on the instruction of the court that the act of the defendant in pouring the fluid out of the bottle was prima facie evidence that it was intoxicating liquor and unlawfully possessed under section 28, Act No. 53, Pub. Acts 1919, are without merit. People v. Miller, 217 Mich. 635. The judgment is affirmed. Fellows, C. J., and WiESTy McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.