Pitkunas v. State

Eschweiler, J. Plaintiff in error contends that inasmuch as his conviction must be sustained, if at all, upon the dropping of the bottle and glass into the pail of water, and that such physical act being performed before the production of the search warrant or' any announcement made by the officers of their-possession of such or of their intention to make a search, that this wa-s not sufficient to warrant a conclusion by the jury, necessary for conviction, that such act was being done during a search of the premises. As to this we are satisfied that under the facts the jury had warrant for believing that the defendant knew that the officers were there for that purpose and in believing that though momentarily prior to .the announcement of the purpose of the peace officers, defendant’s acts were but anticipatory and induced by reason of the well founded belief' that such was their purpose. The facts here are substantially different from those presented in Novotny v. State, 182 Wis. 304. 196 N. W. 232, cited. [92] Again, it is contended that, conceding their presence, there was no such destroying of the fluids in the bottle and glass as meets the call of the statute reading: Section 1543 (19). “It shall be unlawful for any person to secrete or destroy any fluids on premises being searched for the purpose of preventing the seizure of such fluids, by the commissioner, or any peace officer.” The argument on this point is in substance that the contents, if any, of the glass and bottle were in no- sense destroyed but merely transferred from the glass and bottle resting on the bar into the pail of water. That this amounts to no more than a mere change in the geographical position of the fluids. ■ That they could as well be seized by the officers while mingled with the water in the pail as when standing in the glass and bottle on the bar. That they were not destroyed and remained on the premises. However well such view may be supported in theory and by immutable logic as to the indestructibility of matter, we cannot deem it proper in the' practical application of such a statute. The change that was here made, conceding, the presence, of fluids in glass and bottle, from their comparatively isolated position as they stood before, and their subsequent immersion in the pail of water, was for practical purposes well within any reasonable definition that should be accorded the word “destroy” as here used. Lastly, it is contended that there was no proof that there were any fluids in either glass or bottle prior to' their plunge into the pail and that therefore there was no proof-of what might be called the corpus delicti. The defendant and his witnesses testified that the bottle and glass were each emptied of their previous contents prior to the arrival of the officers. Two officers who forthwith with their entry saw the articles standing oh the bar testified that they could see no liquids in them. They however do testify that upon prompt removal from the pail of the bottle and glass there was detected upon each the smell of intoxicating liquor. Such proof, it is urged, is insufficient, for [93] it might well be that such odor arose by reason of immersion in the alcoholic contents of the pail and that the state has not proven pristine purity in the pail. No proof, however, was offered by defendant tending to show that the odor of intoxicating contents could not remain with such glassware after submersion, and we cannot take judicial notice that there is any such impossibility. The jury may well have believed that there was truth as well as poetry in that charming gem of the Irish poet, Thomas Moore, in his Farewell Ode to Byron: “You may break, you may shatter the vase, if you will, But the scent of the roses will hang round it still.” The corollary easily follows that roses have no monopoly on clinging, persisting scents. Be the method what it may, we cannot disturb the result. By the Court. — Judgment affirmed.