Defendant was convicted of illegal possession of liquor, and reviews on writ of error. He claims there was an unlawful search of his automobile, and that liquor obtained by such search should not have been received in evidence. The legality of the search was made an issue before the jury, and 9 of the 13 assignments are based upon claimed errors in the court's instructions relative thereto. We have repeatedly held such an issue must be raised by motion to suppress, made before trial, and determined by the court. It is never a matter for the jury.
The record in the instant case is vague as to when the motion to suppress was made. It shows a motion to quash the information and "that the evidence produced against him at the examination be suppressed and that he be discharged" was made by the defendant, and denied by the court, but whether before trial or at the close of the proofs is not clear. But when the seized liquor was offered in evidence, the following occurred:
"Mr. Pierce: They are objected to for the reason that they were obtained as the result of an illegal arrest and unlawful search and seizure and in violation of the respondent's constitutional rights. *Page 129
"The Court: The exhibits will be received and exception noted."
If the motion was made and disposed of before trial, further questioning on the subject at any further stage was thereby foreclosed. See People v. Dungey, 235 Mich. 144. If no objection was raised until the exhibits were offered upon the trial, the objection came too late. Whether the jury was properly instructed relative to the right of search and seizure is therefore of no consequence.
Upon the sole issue in the case, viz., whether or not defendant had liquor in his possession, the only instruction was the following:
"If you find from the evidence and beyond a reasonable doubt that the officer had reason to believe that there was intoxicating liquor in that car, and acting upon that belief stopped the car and arrested John Burke, then the simple question remains for you, were the contents of that car intoxicating liquor, in violation of the statute? And in regard to that, I say, gentlemen, there is no dispute."
This was not in substance nor in effect an instruction to the jury that in order to convict the defendant it must be satisfied from the evidence beyond a reasonable doubt that he had intoxicating liquor in his possession. The charge is therefore erroneous. But, in view of the fact that there was no testimony on the part of the defendant that the liquid found was not in truth such as is prohibited by law, and because his entire defense seems to have been planted on an alleged unlawful arrest and seizure of the contents of the automobile, the error was without prejudice, and in no way affected the result of the verdict (3 Comp. Laws 1915, § 14565).
The conviction is therefore affirmed.
BIRD, C.J., and SHARPE, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred. *Page 130