The information in this case charged the defendant with having unlawfully had a quantity of intoxicating liquor in his possession in the county of Genesee on July 9, 1928. It also charged his conviction of felonies committed in said county on three former occasions. He was convicted after trial, and here seeks review by writ of error.
There is little dispute about the facts. Three of the officers of the county visited defendant's home after 1 o'clock in the afternoon of the day charged, in response to information received that "they were having a rough party at his home south of the Bristol road." When they arrived, "there was a lot of noise coming out of the house, swearing, laughing." As one of them went toward the front of the house, he saw a gallon jug thrown out of the window. It was not broken in the fall, and, on examination, was found to contain a considerable quantity of moonshine whisky. Defendant, his wife, his sister-in-law, and several men were in the house. All of them, except perhaps the defendant, were more or less intoxicated. He was arrested, and his trial and conviction followed. The errors relied upon will now be considered.
1. It is urged that defendant's constitutional rights were invaded by the entry of the officers upon his premises and the arrest which followed. A petition to suppress the evidence taken on the examination for this reason was filed. It was unsupported. The examination does not appear in the record. Neither does it appear that it was passed upon by *Page 227 the trial court. Error may not be predicated upon a claimed denial thereof. The jug containing the liquor was thrown from the room in which the defendant was before the officers entered the house. By this act they were apprised that the law was being violated by some person therein.
2. Defendant's Control of his Home. Defendant testified that he had been at work that morning and returned to his home about 11 o'clock; that the persons above named were then there and he saw the jug containing the liquor and knew that they had been drinking; that there was loud talking; that he threw the jug out of the window when the officers arrived; that, while the others continued to drink, he did not drink any himself; that "liquor was offered to everybody," and was served by his wife; that he threw the jug out of the window to get rid of it, and tried to break it; that his wife "said it belonged to her, that she was running the place." The instructions of the court as to defendant's liability in this respect were in line with the law as stated in People v. Sybisloo, 216 Mich. 1 (19 A.L.R. 133).
3. Instructions to the Jury. It is urged that the instructions "amounted to a directed verdict of guilty" under the rule relating thereto, as announced in People v. Lintz,244 Mich. 603. We have read the charge with care, and cannot so conclude. While the trial court referred to the testimony of the defendant and other witnesses, he made it clear to the jury that it was for them to decide upon the guilt or innocence of the defendant. He said:
"If there is any question in your minds about his guilt in this matter, if there is any reasonable doubt of his guilt, it is your duty to acquit him." *Page 228
The defendant had a fair trial. No reversible error appearing, the judgment should be affirmed.