On September 5, 1925, Charles E. Manning made affidavit that he had reason to believe, and did believe, that intoxicating liquors were unlawfully possessed and kept for sale by Howard Baracker at a certain barn (particularly described) in Poplar, Roosevelt county, Montana, and that the reason for his belief was that on the night of September 4, 1925, he "personally saw a keg containing intoxicating beverages in said barn," etc. Upon this affidavit the justice of the peace before whom it was made issued a search-warrant, which was duly executed. The sheriff in his return recited that he searched the designated premises and seized therein "one five-gallon keg nearly full of moonshine, 12 whisky glasses, 1 jug, 1 glass bottle, 1 tin cup." On September 10 an information was filed charging Baracker with the unlawful possession and sale of intoxicating liquor. Timely application was made to suppress the evidence secured by the search and, when the application was denied, this proceeding was instituted to prohibit the use of the evidence.
The only questions presented are: (1) Does the record disclose that the county attorney consented to the issuance of the search-warrant, and (2) does the affidavit state facts sufficient to show probable cause? *Page 478
1. Section 11071, Revised Codes of 1921, as amended by Chapter[1] 116, Laws of 1923, provides that upon a proper showing a justice of the peace "may, with the approval of the county attorney, issue a search-warrant," etc. This is the only reference to the subject to be found in the law; but since a justice of the peace court is one of limited jurisdiction, the fact that such approval was given must appear affirmatively from the record. (State ex rel. Skrukrud v. District Court,71 Mont. 570, 230 P. 1089.)
It will be observed that although the statute requires that the approval be obtained before the warrant is issued, it is altogether silent as to the manner or form in which the fact of approval must be made to appear. Under these circumstances the courts are not authorized to say that it must be made to appear in a particular form or manner, if it appears from the record at all. In this instance the justice of the peace recited in the warrant that the county attorney had given his approval, and in the absence of any statutory requirement that the fact should be evidenced in a different form or manner, it must be held that the recital is sufficient, prima facie, to establish the fact.
2. The statute above requires that the affidavit for a search-warrant must state the facts upon which the affiant's belief is based; however, the statute does not add anything to the law as it existed theretofore. Without it, the same rule would be invoked in virtue of the provisions of the Constitution. (Art. III, sec. 7.)
It is elementary that probable cause for issuing a[2] search-warrant must be made to appear to the magistrate who is called upon to issue the warrant; that the affidavit must state facts sufficient to justify the issuance of the warrant, and that an affidavit which states only conclusions, however positively stated, is not sufficient. This is the rule in this state, now too firmly established to be open to further controversy. (State ex rel. Samlin v. District Court,59 Mont. 600, 198 P. 362; State ex rel. Thibodeau v. DistrictCourt, *Page 479 70 Mont. 202, 224 P. 866; see, also, Thorpe on Prohibition and Industrial Liquor, sec. 776; Cornelius on Search and Seizure, sec. 90.) But it is frequently a difficult matter to distinguish between a statement of an ultimate fact and a statement of a conclusion, or to determine in any given instance whether a particular statement belongs to one class or the other. The test usually employed is this: Could the affiant be prosecuted for perjury if the statement is false?
Speaking generally, perjury can be predicated only upon a false statement of a material fact made under oath (sec. 10878,[3] Rev. Codes). If, then, a charge of perjury could be maintained against Manning if his statement, "I personally saw a keg containing intoxicating beverages in said barn," is untrue, it is because the statement is one of fact, as distinguished from a mere conclusion. It could not be disputed that if the statement is one of fact, the fact is material. (21 R.C.L., p. 259.) The statement does not disclose the means employed by Manning to ascertain that the keg contained intoxicating beverages; in other words, the affiant does not tell whether he smelled or tasted the contents of the keg, but he does swear positively that on the night of September 4, 1925, he personally saw a keg containing intoxicating beverages in the barn occupied by the accused. If this statement is untrue, we are of the opinion that a charge of perjury could be predicated upon it, — that is, that it is a statement of an ultimate fact, as distinguished from a mere conclusion.
In Neal v. Commonwealth, 203 Ky. 353, 262 S.W. 287, the affidavit was in the following form: "The affiant states that he knows that intoxicating liquors are sold and possessed at said soft drink stand." It was held that this is a statement of an ultimate fact which meets the test referred to above.
In State v. Quartier, 114 Or. 657, 236 P. 746, the affidavit was to the effect that there is in the possession of Albert and Nettie Quartier at a designated place in Portland, a still worm, mash and intoxicating liquors. In disposing of the same contention as that made in the case before us, the supreme court *Page 480 of Oregon said: "The affidavit in question contains a concrete statement of facts, and does not consist of conclusions of law." These cases are in harmony with the decision of this court inState v. English, 71 Mont. 343, 229 P. 727.
From the recital in the Manning affidavit the justice of the peace found that there was probable cause for issuing a search-warrant and the warrant was issued accordingly.
The test for determining what is probable cause has been announced repeatedly. In Carroll v. United States,267 U.S. 132, 39 A.L.R. 790, 69 L. Ed. 543, 45 Sup. Ct. Rep. 280, the supreme court said: "If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient."
In Dumbra v. United States, 268 U.S. 435, 69 L. Ed. 1032,45 Sup. Ct. Rep. 546, the same court said: "In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant."
The question now arises: Does the case before us meet the test prescribed above? In the very nature of things there cannot be any hard-and-fast rule by which to determine what facts or circumstances ought or ought not to warrant a man of prudence and caution in believing that an offense has been committed. Every case must be decided upon its own facts and circumstances, and facts deemed sufficient by one court may not satisfy another tribunal of equal dignity and authority. Indeed, the decided cases disclose the conflicting views *Page 481 entertained by different courts upon this subject. (Cornelius on Search and Seizure, sec. 83, note.)
In each of the following cases we omit the formal parts of the affidavit and as well the description of the premises:
In United States v. Friedman, 267 Fed. 856, the affidavit stated that at a certain time the affiant purchased from the accused intoxicating liquor containing one-half of one per centum or more of alcohol and that he paid therefor a named price. Concerning these recitals the court said: "These are facts, and upon such facts the commissioner could find probable cause to believe that an offense against the National Prohibition Act had been committed."
In Boehm v. United States, 6 F.2d 497, the affidavit contained these recitals: "In certain premises in possession of Louisa Boehm and Joe Boehm * * * there is located certain illicit stills or distilling apparatus designed and intended to be used * * * for distilling intoxicating liquor; coils, unions, condensers, mash intended to be used or fit for distilling intoxicating liquor and certain vessels and utensils in which intoxicating liquor is kept and stored." In disposing of the question of the sufficiency of the affidavit the court remarked: "These are positive statements which we deem sufficiently definite and circumstantial to authorize the commissioner to issue the warrant."
In Walters v. Commonwealth, 199 Ky. 182, 250 S.W. 839, the affidavit stated that "affiant personally saw John Walters carry a basket of bottles of whisky from same, to-night, and knows that intoxicating liquor is possessed and sold at residence and premises No. 926 South Limestone Street, being the premises of Collis Walters," etc. This affidavit was held to be sufficient.
In Alvey v. Commonwealth, 199 Ky. 655, 251 S.W. 856, the affidavit stated that affiant "has been in and on said premises and has seen said Chas. F. Alvey in possession of intoxicating liquors on said premises and has seen him make *Page 482 sales of said intoxicating liquors." These recitals were held to be sufficient to show probable cause.
In Neal v. Commonwealth, the affidavit copied above was held to be sufficient.
In State v. Smith (Okla.Cr.), 235 P. 273, the affiant stated that at the time the affidavit was made, certain intoxicating liquors were being manufactured, sold, bargained, given away and otherwise furnished and kept for the purpose of being sold, bargained and given away in violation of the law; then followed a description of the liquors, a description of the premises and the statement that the true name of the offender was unknown to the affiant. The court held this affidavit sufficient.
In State v. Quartier above, the affidavit there considered was held to state facts sufficient to show probable cause.
In Steele v. United States, 267 U.S. 498, 69 L. Ed. 757,45 Sup. Ct. Rep. 414, the affidavit stated: "I saw a small truck driven into the entrance of the garage, and I saw the driver unload from the end of the truck a number of cases of stenciled whisky; they were the size and appearance of whisky cases, and I believe that they contained whisky," etc. This affidavit was held to be sufficient to justify the issuance of a search-warrant.
In State v. English above, this court held sufficient an affidavit which stated that "on the seventh day of March, A.D. 1924, he [affiant] purchased intoxicating liquors from Jay English."
In State v. Gardner, 74 Mont. 377, 240 P. 984, the affidavit by Mrs. Dermid recited: "That on or about the third day of January, 1925, she saw intoxicating liquor in the possession of one Frank Gardner and Mrs. Frank Gardner in the following described premises [particularly describing them], and which said intoxicating liquor was then and there unlawfully manufactured and sold by the said Frank Gardner and Mrs. Frank Gardner, and that affiant at the same time and place saw intoxicating liquor sold by the said Frank Gardner *Page 483 and Mrs. Frank Gardner in the dwelling-house hereinbefore described. Affiant saw then and there jugs and bottles containing intoxicating liquors delivered by said Gardners to other persons and money as consideration therefor given to the Gardners." This court held that the facts disclosed were "sufficient to convince the judge * * * that probable cause existed to believe that Gardner had violated the liquor laws on January 3," but that those facts alone did not disclose probable cause for believing that a like offense was committed on January 28, the time the affidavit was made. (See, also, State v. Rice, 73 Mont. 272,235 P. 716.)
Upon principle, we are unable to distinguish any of those cases from the case now before us. The same reasoning which justified the conclusion reached in each one of them justifies our conclusion that the affidavit before us is sufficient. Accordingly the proceeding is dismissed.
Dismissed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES STARK and MATTHEWS concur.