The residence of plaintiffs in error was raided by officers armed with a search warrant and a quantity of whiskey in pint bottles was there found concealed under the floor of one of the rooms. The defendants did not testify and offered no explanation of these convincing facts. They were both convicted of possessing intoxicating liquors and given jail sentences of thirty days and a joint fine of $100. *Page 380
On this appeal, the admission of the testimony of the officers is assigned as error on the ground that their information was obtained by an illegal search, that the search warrant under authority of which they acted was invalid in that the description of the property was insufficient, the specific objection interposed being that, while the affidavit on which the warrant was based averred that these parties were "in unlawful possession and control of a quantity of intoxicating liquors . . . in violation of law," etc., it did not go further and aver that this particular intoxicating liquor contained more than five per cent alcoholic content, and that it is not unlawful to possess intoxicating liquor unless it contains more than five per cent alcoholic content. The argument is that the affidavit is fatally defective because it fails to negative that the liquor referred to was of a type or kind that might be lawfully possessed, such as beer, ale or wine, contrary to the ruling of this Court that such negativing exceptions are not required to be set forth in indictments charging unlawful possession, etc., of intoxicating liquors. McHenry v. State, 168 Tenn. 667, 80 S.W.2d 655;Clark et al. v. State ex rel. Bobo, 172 Tenn. 429,113 S.W.2d 374, 782.
It is first to be observed that we are here presented with a challenge of the determination by a judicial officer, in the exercise of the discretion expressly conferred on him by statute, of the sufficiency of the evidence presented to him of probable, or reasonable, cause for his belief that the defendants named in the warrant were in unlawful possession of intoxicating liquor.
Code Section 11901 expressly confers on the magistrate jurisdiction to determine this issue. This section reads: "Ifthe magistrate is satisfied of the existence of the grounds of the application, or that there is probable *Page 381 ground to believe their existence, he shall issue a search warrant," etc. (Italics supplied.) This definition of the phrase "probable cause," the meaning of which we are considering, is given by Bouvier: "Probable Cause. A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged. Carl v. Ayers, 53 N.Y. [14], 17; Fugate v. Millar, 109 Mo. 281, 19 S.W. 71; Clement v. Major, 1 Colo. App. 297, 29 P. 19." 2 Bouv. Law Dict., Rawle's Third Revision, page 2728.
This Court has repeatedly recognized that "in determining that probable cause appears for issuance of the warrant the magistrate is performing a judicial act." Gallimore v. State, 173 Tenn. 178, at page 181, 116 S.W.2d 1001, at page 1002; Seals v.State, 157 Tenn. 538, at page 541, 11 S.W.2d 879, at page 880; Hampton v. State, 148 Tenn. 155, 252 S.W. 1007;Craven v. State, 148 Tenn. 517, 256 S.W. 431. Mr. Justice COOK, in Hampton v. State, supra, cites State v.Peterson, 27 Wyo. 185, 194 P. 342, 348, 13 A.L.R., 1284. And that opinion emphasizes that "the finding of `probable cause' is a judicial question," to be decided by "the judge or magistrate before whom the complaint is filed," citing 24 R.C.L., 707, and a number of decisions. See 3 A.L.R., p. 1519. Moreover, we have applied the material evidence rule to these hearings before the magistrate on this issue of a showing of "probable cause." InGallimore v. State, supra, we said: "It is for the magistrate himself to determine whether, in any case before him, it is essential that the name of an informant, otherwise shown to him to be a reliable person, shall be given. In other words, what particular, or specific, facts shall be placed before the magistrate in order to justify the exercise of his discretion *Page 382 in determining whether or not `probable cause' exists is for the magistrate himself to determine, provided only that it appears from the face of the affidavit that there was material evidence before him supporting his action. To this extent only will this Court review his action."
In two early cases by our Chief Justice, Elliott v. State,148 Tenn. 414, 256 S.W. 431, and Craven v. State,148 Tenn. 517, 256 S.W. 431, while strongly emphasizing that the affidavit presented to the magistrate must, "set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist," — that otherwise the magistrate would have nothing on which to exercise discretion — and his act "in issuing the warrant would not be based upon any judicial discretion," — the opinions clearly recognize that, if the character of the information had by the affiant is disclosed to the magistrate, it is his judicial province to determine its sufficiency. Hampton v. State, supra, so holding, is cited with approval.
The annotation in 3 A.L.R., at p. 1519, calls attention to important distinctions applicable here, where we are considering the sufficiency of the description in the affidavit and warrant. It emphasizes the distinction, in the first place, between the degree of accuracy required in describing the place to be searched, and that required in describing the property to be searched for. It is said that the place to be searched should "be designated with sufficient accuracy to prevent the officer from searching the premises of one person under a warrant directed against those of another, while the description of the property to be seized will vary according to whether the identity of the property, or its character, is the matter of concern." (Italics supplied.) The note proceeds to *Page 383 quote: "Thus, where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize not specified property, but any property of a specified character which, by reason of its character, and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place and circumstances, would be unnecessary, and ordinarily impossible." State v. Nejin, 140 La. 793, 799, 74 So. 103 (1917).
The Annotator, in 74 A.L.R., at p. 1513, after reviewing and quoting from numerous decisions, says that, "A general description of the things to be seized as intoxicating liquor is sufficient, it being unnecsesary for the affiant to guess at the various kinds of intoxicating liquor, their quantity, or the character of the apparatus used in their manufacture," etc., and again notes the necessity for greater accuracy in designation of a specific thing to be searched for. So it is said in 30 Am. Jur., 537, "The accuracy required in describing the premises is not requisite in describing the liquor."
The specific question before us is whether or not the description in the affidavit as a "quantity of intoxicating liquors in possession in violation of law," afforded the magistrate probable cause. or reasonable grounds, for believing that the intoxicating liquor referred to was not beer or wine, legally possessed, but whiskey, rum, brandy, or gin illegal to possess. Was it not competent for the magistrate to be influenced by the generally accepted meaning given the term "liquor" as distinguished from "beer?" Certainly, in common parlance, when one speaks of liquor, he does not ordinarily mean beer. One invited to have a drink of "liquor" would be surprised *Page 384 and usually disappointed by tender of a bottle of beer. Many men who use one do not use the other. The two are treated and classed as distinct beverages, both in use and in phraseology. An officer who represents to a magistrate that John Doe is hauling a quantity of liquor certainly does not intend to convey the meaning that John Doe is hauling a quantity of beer, and his representation is not so understood by the magistrate. It seems inconceivable that the affiant in this case had in mind beer, or that the magistrate could have so understood him. Was not this magistrate afforded probable cause, "a reasonable ground of suspicion, supported by circumstances," (2 Bouv. Law Dict., Rawle's Third Revision, page 2728) that this defendant was in possession of liquor, as commonly understood, rather than beer?
And this is the meaning in which the term "intoxicating liquor" has been constantly used in our statutes and opinions. The common statutory usage, when both classes of beverage are intended, is to specify both, by some such phrase as "intoxicating liquor, including beer."
Conceding the force of the suggestion that the analogy between the charge in an indictment and that in a search warrant proceeding is not controlling (although it would seem that no greater particularity should be required to show probable cause in a preliminary proceeding than is required in a proceeding to determine the guilt or innocence of the accused), we have here an illustration, certainly, of the sense in which the phrase or term "intoxicating liquor" is commonly employed in pleading.
Again, as bearing upon the meaning conveyed to the magistrate by the use of this descriptive phraseology, the fact is that the universal practice has been, since the enactment of legislation legalizing sale and possession of beer with alcoholic content sufficient to intoxicate, if used *Page 385 in necessary quantity to use this identical phraseology "intoxicating liquor" in referring to and describing liquor other than beer. The printed forms in common use, prepared with care and by legal advice and direction, have been repeatedly accepted as sufficient in the courts of this State, including this Court. The exact question now presented, as to the meaning of the phrase "intoxicating liquor," was considered in Armstrong v. State,150 Tenn. 416, 265 S.W. 672, opinion by our Chief Justice, who thus disposed of the question. We quote (150 Tenn., at page 421, 265 S.W., at page 673): "The warrant here commands a search for `liquors' and a taking of `liquors,' if found. It was held inHampton v. State that a description of the property as `intoxicating liquors' was sufficient. We think a description of such property as liquors is equally sufficient. In common use, the word liquor is taken to mean intoxicating liquor, and there is no probability that a misunderstanding will ever arise by reason of such use of the word in a magistrate's search warrant."
It is suggested that at that time beer, an intoxicating beverage, could not be lawfully possessed, as it may now. But, as responded by the Attorney-General, a beverage known as "Home Brew" was in common use, could be lawfully possessed, and was equally as intoxicating as is beer.
Now bearing in mind that we are reviewing a judicial determination of a question of fact by an expressly authorized tribunal, can it be said that the affidavit which described this property as "a quantity of intoxicating liquor," being kept on the premises described "in violation of law," that is, illegally, afforded no probable cause, no material evidential basis, for a belief on the part of the Court that this "quantity of intoxicating liquor" was not beer, possessed lawfully, but "liquor" of a kind unlawful *Page 386 to possess, such as whiskey, brandy, etc.? It seems clear that this phrase, "a quantity of intoxicating liquor," has a meaning sanctioned by statutory, judicial, and common every day usage which prima facie excludes beer, and we cannot escape the conviction that this magistrate was afforded probable cause, or reasonable ground, for issuing this warrant, in accordance with the generally accepted practice. It results that the assignment challenging the admission of the testimony is overruled and the judgment of conviction of Fred Lea affirmed.
However, it appears to be conceded that the dwelling house searched was the residence of Fred Lea and his codefendant, Mrs. Lea, was his wife and was on the premises in that capacity. We find no evidence that she was personally in possession of the liquor, or exercising any control over it. The judgment will be reversed as to her on the authority of Crocker v. State,148 Tenn. 106, 251 S.W. 914, and cases therein cited.1
A companion case, wherein the same parties appeal from a judgment revoking a parol, heard with the instant case, is likewise affirmed as to Fred Lea and reversed as to Fred Lea and reversed as to the wife.
NEIL, PREWITT and GAILOR, JJ., concur. GREEN, C.J., dissents (opinion below).
1 Note: In the case of King v. State, Knox Criminal, recently decided, this Court considered the question of the sufficiency of a description in an affidavit for a search warrant hereinbefore dealt with and at first decided and handed down an opinion holding the warrant invalid, but a petition to re-hear was granted and that decision set aside and the opinion withdrawn and the judgment affirmed on other grounds. The original opinion was prematurely published by West Publishing Co., 174 S.W.2d 463. It will not appear in our official reports. *Page 387