An information was filed September 29, 1925, against defendant in the Washtenaw circuit court for having possession of 10 gallons of whisky. He stood mute when arraigned and a plea of "not guilty" was entered by the court. The return of the justice was filed in circuit court on September 25th, four days before he was arraigned. On October 3d *Page 402 defendant's counsel filed a motion to suppress the evidence seized under the search warrant. This motion was noticed for the following Saturday, in accord with the usual custom in that circuit when the jury was present. Court convened on October 6th and there were five criminal cases ahead of defendant's. Later, on the first day of term, counsel were advised by the prosecutor that defendant's case would be the first case on call in the morning. They immediately prepared and filed a motion and served it on the prosecutor, requesting the trial court to either grant a continuance of the case until the motion could be heard, or advance the argument on the motion so it could be determined before the trial began. This motion was denied and defendant was forced to trial before his motion was heard. The evidence obtained by the search warrant was admitted over the objection of counsel, and defendant was convicted and sentenced to the State's prison at Jackson. The ground of defendant's motion to suppress was based on the fact that the only ground of belief of the affiant in the affidavit for a search warrant was stated to be:
"That he, the said Henry Hinz, on Tuesday, May 12, last, purchased a pint of whisky for $2.70 and became intoxicated from drinking the same; and that the second floor above described is a resort for the sale and purchase of intoxicating liquor."
Two questions are discussed:
(1) That it was an abuse of discretion on the part of the trial court to refuse to either advance the argument or continue the case until the motion could be heard, under the rule.
(2) That the search warrant was void because the affidavit for the same was not specific enough, there being no statement from whom the liquor was purchased, and no allegation that it was purchased at the place described in the affidavit.
1. The record does not disclose that there was any *Page 403 such delay in preparing defendant's case as to give rise to the belief that his counsel was attempting to delay the proceedings, nor is there anything to give rise to the belief of bad faith on the part of counsel. It was the duty of counsel to take advantage of the defect in the affidavit for the search warrant, if they thought there were one, and if court matters had not moved so swiftly the motion would have been heard on the regular motion day before the trial was on. In view of this emergency, they petitioned the trial court to advance the argument. The trial court has the right, under Circuit Court Rule No. 15, to do so, and he should have done so, as he knew if he refused defendant would be deprived of that part of his defense. We can see no reasonable grounds for his refusal. Under the circumstances, his refusal to advance the argument was an abuse of discretion. In view of the fact that the question was an important one in defendant's defense, the judgment of conviction should be reversed and a new trial granted. The defendant should be remanded to the custody of the sheriff of Washtenaw county.
STEERE, FELLOWS, and WIEST, JJ., concurred with BIRD, J.