Carver v. State

Stevens, J. The validity of the search warrant which was in the possession of the officers on the evening of December 1, 1924, is not in issue here, because no evidence procured by the officers while proceeding under the search warrant was offered at the trial. The only proof offered was that of the voluntary acts of the defendant prior to the time of his arrest and before any attempt was made to conduct a search pursuant to the warrant. The acts and conduct of the defendant tending to establish his guilt were clearly admissible in evidence. The sufficiency of the information is questioned for the first time in this court upon appeal. The defendant waived his right to make this objection by not raising that question before the jury was impaneled and testimony taken. Sec. 355.09, Stats. But were the question before the court, the allegation that the possession of the liquor in question was “prohibited and unlawful, being in violation of section [237] 165.01 of the Wisconsin Statutes,” is a sufficient statement of the offense under sub. (27) of sec. 165.01 of the Statutes that “it shall be sufficient to state that the act complained of was prohibited and unlawful.” The evidence was sufficient to warrant the jury in finding every fact essential to establish the guilt of the defendant. The fact that the defendant went in the darkness of the night to the exact place where the liquor was secreted warranted a finding that the liquor was in the possession of the defendant. To be in the possession of the defendant it is not necessary that the liquor be in the house or upon the person of the defendant. There is no conflict in the proof that the liquor in the broken bottle was an alcoholic liquor fit for beverage purposes. It is sufficient that one experienced in the detection of such liquor, as was the sheriff, identify the liquor by the sense of smell. People v. Cook, 230 Mich. 211, 203 N. W. 92, 93. The fact that the alcoholic content of the liquor was detected by the sense of smell alone goes to the weight, not to the admissibility, of the evidence. The weight of such evidence is for the jury. People v. Savage, 225 Mich. 84, 195 N. W. 669. The fact that defendant’s customer was willing to pay more than a dollar and a half for a pint of this liquor was a fact that the jury had the right to consider as tending to corroborate the testimony of the sheriff as to the nature of the liquor. The jury also had the right to consider that the defendant kept this liquor secreted back of his home and that he destroyed the bottle which contained it immediately when accosted by the officers, even though he had a customer waiting who was ready to pay more than a dollar and a half a pint for it. This fact may well have led the jury to find that this was not government bonded liquor or any other kind of liquor lawfully in the possession of the defendant. Had [238] he been lawfully in possession of this liquor, the presence of the officers of the law would not have prompted him to destroy such a precious fluid with such undue haste. The court finds no errors in the trial of the case and believes defendant had a fair trial and that his guilt was fully established by the proof. By the Court. — Judgment affirmed.