I think the defendant is entitled to have a new trial because of prejudicial errors in the admission of evidence and in the charge to the jury.
The first witness called by the State was an assistant clerk of the Sixth District Court. On direct examination she was asked to produce a search-warrant issued from seized, *Page 489 court September 13, 1927, and the return thereon made on September 17. Question 7, in direct examination is, "What is your final entry on that?" (referring to the search-warrant). The defense objected to this question on the ground that all of the entries on the warrant and return could not be used as evidence against the defendant and claimed that they could properly be used to show only the authority to enter and search the premises and the return of the officer's doings. The court said: "I have allowed the search-warrant, the disposition of it in the district court, the return of the officer upon it and all those things to be entered. If I allow them to enter the search-warrant as evidence, it is evidence and is evidence of everything that is on it. I don't know how to distinguish between a part of it and the whole of it. I am going to allow it and allow her to read anything on it and you have a perfect right to contradict anything that she reads." Defendant's objection was overruled and the witness then read the following entry which had been made on the search-warrant after the return: "Sep 23 1927 No one appearing to claim ownership in the liquor and utensils described in the within return, the same are declared forfeited to the State of Rhode Island." Counsel for defence then moved to exclude the question and answer. This motion was denied and exception to this ruling was taken. Included in the officer's return in addition to the usual statements was the following entry: "Analysis whiskey 44.75%; whiskey 44.75%; whiskey 52.10%." This statement of analysis presumably was obtained from the report of Albert Fenner, State Assayer of Liquors. Fenner testified that he made the assay of samples of the seized liquors on the 20th of September. The officer's return was made September 17. Just how a report of an analysis made three days later could be made in the return does not appear. G.L. 1923, C. 332, s. 25, provide that every officer to whom a writ shall be delivered shall execute the mandates therein and make return of his doings thereon. *Page 490
In Sheldon, Jr. v. Comstock, 3 R.I. 84, it was held that "An officer's return on process of every kind should state that he has performed what the mandatory part of the process required of him. It should contain a statement of the acts which he has done under and by virtue of it, and the place and the time when and where they were done. His office is simply ministerial. . . . If more be added, although it may not vitiate the return, it will not be considered as part of it. The facts essential to a return are taken as conclusively proved, if stated in it, except in those cases where express provision to the contrary is made by statute, and except in suits against the officer making it for a false return. The return of the officer is the only proper evidence to prove those facts. If other facts are contained in the return, they are to be rejected. The officer's return is no proper evidence of their truth." The analysis was not a proper part of the return and should have been rejected.
The seizure and condemnation of intoxicating liquors are proceedings in rem for the purpose of securing a forfeiture against the liquors. In State v. Seymour, 46 R.I. 257, at 261, this court says: "A charge in rem is distinct and independent from a charge in personam, and judgment in one case could not affect the judgment to be entered in the other." The decision of the court of forfeiture of the liquors and utensils, as appears by the entry of September 23 on the warrant, could not properly affect the defendant in the trial of the complaint issued September 30, 1927, on which he was tried and found guilty. The submission to the jury of these two entries as evidence against the defendant was improper and prejudicial to defendant.
In his charge to the jury the justice said: "The evidence in this case, and you are the ones to consider the truth of the evidence, . . . the evidence here is that these police officers . . . went up to the back of this place on Pine street with a search-warrant which is in evidence and will be before you. It has been discussed in part by the State and I have ruled that it is before you in its entirety *Page 491 and is one of the exhibits in this case." The justice by his charge thus affirmed his previous ruling that every entry on the warrant and return was evidence to be considered by the jury. This ruling was erroneous on a vital issue of the case and must have been prejudicial to the defendant. It is quite probable that the defendant is guilty of the offence charged. But, whether defendant was in fact guilty or innocent, considering the provisions of Section 14, Article I, of the State Constitution, that every man is presumed innocent until he is pronounced guilty by the law, I am forced to the conclusion that to sustain this conviction would result in denying to the defendant the rights guaranteed to him by the Constitution. I think a new trial should be directed by this court.
SWEENEY, J., concurs in the dissenting opinion of STEARNS, J.; and for the additional reason that the search-warrant was not admissible in evidence against defendant as expressly decided inState v. Collins, 28 R.I. 439.