State ex rel. Neville v. Mullen

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On the night of April 30, 1921, the sheriff of Powell county met the defendant Mullen in an alley in the city of Deer Lodge, carrying a handbag from which protruded the top of a demijohn, the demijohn containing two gallons of intoxicating liquor. The sheriff without a warrant seized the handbag and the demijohn and its contents, and on May 2 filed a complaint charging the transportation of intoxicating liquor in violation of law and made return, setting forth a particular description of the liquor and property seized and of the place where seized. A warrant was thereupon issued and delivered to the sheriff, commanding him to retain possession of the seized property until discharged by process of law. At the same time the court entered an order fixing the time and place for hearing and a citation directed to the defendant was issued and served. Prior to the hearing, defendant filed his verified claim of ownership of the property and demanded a return, but at the hearing failed to offer any evidence in support of his claim. Upon the hearing the state offered its evidence and thereafter a judgment was duly given and made confiscating the property, ordering the liquor destroyed and the handbag and demijohn sold. From that judgment this appeal is prosecuted.

The defendant was not arrested or tried, and it is contended that the district court erred in entering judgment forfeiting the property before the defendant was convicted of violating the law.

Chapter 143, Laws of 1917, is known familiarly as the Prohibition Enforcement Act. Several sections of that Act were repealed and other changes in the law effected by Chapter 9, Laws of the Extraordinary Session of 1921. Speaking in general terms, Chapter 143 provides two distinct methods of procedure, one applicable to cases in which the enforcement officer has probable cause for believing that the liquor laws are being violated, though not in his presence, and the other applicable to cases in which the law is being violated in the presence of the officer. Section 7 provides that in instances of the first class a complaint shall be made, a search-warrant issued, a search made and the warrant with the officer’s return filed. Section 8 designates the procedure then to be followed. Section 9 provides for cases of the second class. It requires the officer, without a warrant, to arrest the offender and seize the liquor, vessels, fixtures and appurtenances, to take the offender before the court or judge, make complaint charging the offense committed and furnish a particular description of the liquor and property seized and of the place where the same were seized. Thereupon the court or judge shall cause a warrant to issue directing the officer to hold in his possession the seized property until it shall be discharged by process of law. The procedure shall then conform to the provisions of section 8.

The present proceeding was instituted and prosecuted upon the theory that there was presented a ease of a violation of the law in the presence of the officer, and though there was not a literal compliance with the terms of the statute, the defendant cannot complain that he was not arrested or taken before the court dr judge. Aside from this dereliction of duty on the part of the officer, there was a substantial compliance with the provisions of sections 8 and 9 of Chapter 143 above. Neither section 8 nor section 9 was repealed in terms by Chapter 9, Laws of 1921; but it is the contention of the defendant that, by necessary implication, section 9 was superseded by section 26 of the later Act. Section 26 provides: “When any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrested under the provisions of this Act in any court having competent jurisdiction; # * * The court upon conviction of the person so arrested shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized,” etc. The words “or possessed” in the second sentence of this section are apparently meaningless and were inserted inadvertently. The section deals exclusively with the unlawful transportation of intoxicating liquors by means of a wagon, buggy, automobile, water or air craft or other vehicle and under the rule of statutory construction universally applied by courts, the general terms “or other vehicle” are to be limited in their meaning to designate vehicles of the same general character as those particularly enumerated (Helena Light & Ry. Co. v. City of Helena, 47 Mont. 18, 130 Pac. 446), and this was manifestly the intention of the legislature as the most cursory reading of the section will indicate. Under this construction it is apparent at once that section 26 has no application to such a state of facts as here presented and that it is not irreconcilable with the provisions of section 9 of Chapter 143.

Section 39 of Chapter 9, Laws of 1921, declares that “except as herein otherwise specified, this Act shall be construed as supplemental to and a part of all laws of this state relating to intoxicating liquors.” In other words, the legislature declared that after the particularly enumerated changes in prior laws had been effected, Chapter 9 should then be construed as supplemental to and a part of the remaining statutes dealing with this subject, and this declared purpose the courts are not at liberty to disregard. “Supplemental statutes include-every species of amendatory legislation which goes to complete a legislative scheme.” (First State Bank v. Bottineau County Bank, 56 Mont. 363, 8 A. L. R. 631, 185 Pac. 162.) Construed according to the manifest intention of the legislature, Chapter 9, Laws of 1921, is to be read with Chapter 143, Laws of 1917, as constituting one general legislative plan;-and since there is not any irreconcilable conflict between the provisions of section 9 of the one Act and section 26 of the other, each is to be given full force and effect.

Prior to the enactment of Chapter 9, Laws of 1921, a-statute substantially in the language of section 9 of Chapter 143, Laws of 1917, had been held to be not sufficiently comprehensive in its terms to authorize the seizure of an automobile or other like vehicle used in the unlawful transportation of intoxicating liquors (One Cadillac Automobile v. State (Okl.), 172 Pac. 62), and apparently it was the purpose of our legislative assembly in enacting section 26 of Chapter 9 above, to broaden the scope of the laws and avoid the conclusion reached in the Oklahoma case. This proceeding, warranted by section 9, Chapter 143, is in rem and altogether independent of any criminal prosecution for a violation of the liquor laws. (State v. Kelly, 57 Mont. 123, 187 Pac. 637; State v. Nielsen, 57 Mont. 137, 187 Pac. 639.) We need not determine the character of the proceeding authorized by section 26 of Chapter 9.

Again, it is contended that the trial court erred in refusing to order the liquor, container and handbag returned to the defendant upon his written demand therefor, seasonably made, and the decision of this court in State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362, is invoked in this behalf. In the Samlin Case we went no further than to hold (1) that a search-warrant issued upon a complaint or affidavit which does not set forth any facts showing, or tending to show, probable cause, is void, and (2) that articles seized by virtue of such warrant should be suppressed as evidence and returned to the owner whenever, in a direct proceeding instituted prior to the hearing to test the validity of the process, it is made to appear that the articles were seized unlawfully. That case has no application to the facts here presented. There is not a suggestion in the record that the articles in question were seized or held as evidence. In the Samlin Case, the property was ordered returned to the possession of the owner only as an incident to his right to have it suppressed as evidence. We do not mean to intimate that one whose property is seized in a proceeding of this character cannot contest the officer’s right to its possession, but only hold that the Samlin Case does not authorize the. inquiry.

Prior to the hearing, defendant moved the court to quash the proceeding upon the ground, among others, that the complaint and sheriff’s return of the articles seized disclosed that there was not any violation of law in the presence of the officer, and this notwithstanding that the complaint recites that the defendant was unlawfully transporting intoxicating liquors in the presence of the officer. It is the contention of counsel for the defendant that from the very nature of the case the sheriff did not know, and could not know, that the demijohn contained intoxicating liquor at the time the articles were seized or until after seizure and an examination of the contents of the container, hence, the seizure was unlawful. As we understand this contention, it is that to authorize a seizure under section 9, the officer must have actual, personal knowledge that the acts of the alleged offender constitute a violation of the liquor laws, and, if counsel are correct, then the arrest and seizure provision of section 9 becomes a dead letter; for under practically any conceivable circumstances it would be impossible for the officer to have such knowledge. Section 9 imposes upon the sheriff the duty to arrest the offender and seize the contraband articles without a warrant whenever a violation of the liquor laws occurs in his presence. The right to- seize without process is thus made co-extensive with the right to arrest without a warrant, and the authority to arrest without a warrant is conferred in the same terms as is the like authority given to any peace officer by section 11753, Eevised Codes of 1921, so that we may properly determine the scope of the officer’s authority to seize under section 9 by determining the scope of his authority to arrest without a warrant. "Whatever else may be said upon that subject, the utmost that can be exacted of* the officer who arrests without a warrant is that the circumstances shall be such that upon them alone he would be justified in making a complaint upon which a warrant might issue. In other words, if the circumstances are such that the officer could properly secure a warrant of arrest, he may arrest without a warrant if the -offense which the circumstances tend to establish was committed in his presence; and it is settled in this jurisdiction that the officer need not have actual, personal knowledge of the facts which constitute the offense in order to be able to make complaint and secure a warrant. The question was settled in State v. McCaffery, 16 Mont. 33, 40 Pac. 63, wherein the court said: "It seems to us that the proper construction of the words ‘probable cause’ as used in the Constitution may be facts embodied in a complaint which charges the offense upon information and belief.” The doctrine of that case was expressly approved in State v. Shafer, 26 Mont. 11, 66 Pac. 463.

Reverting to our premise that the sheriff may arrest without a warrant upon such state of facts as would justify the issuance of a warrant, it becomes necessary to consider what circumstances will justify the issuance of a warrant, and the authorities are unanimous in holding that there must be probable cause. The terms "probable cause” are variously defined, but an analysis of the definitions will disclose that the difference, if any, is in the mode of expression, rather than in the substance. "Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.” (Burt v. Smith, 181 N. Y. 1, 2 Ann. Cas. 576, 73 N. E. 495.) "Probable cause for a criminal prosecution is, in effect, the concurrence of the belief of guilt with the existence of facts and circumstances reasonably warranting the belief.” (Runo v. Williams, 162 Cal. 444, 122 Pac. 1082.) "It is not essential to probable cause for an arrest that the accuser believe that he had sufficient evidence to procure a conviction.” (Michael v. Matson, 81 Kan. 360, L. R. A. 1915D, 1, 105 Pac. 537.) "Probable cause * * # does not depend on the actual state of the case in point of fact, for there may be probable cause for commencing prosecution against a party although subsequent developments may show his absolute innocence.” (Mundal v. Minneapolis & St. L. R. Co., 92 Minn. 26, 99 N. W. 273.) “The expression ‘probable cause,’ as used in the federal Constitution referring to the issuance of warrants, means that there is a probability that a crime has been committed by the person named in the warrant.” (Ex parte Heacock, 8 Cal. App. 420, 97 Pac. 77.)

In Burt v. Smith, above, the New York court said: “One may act upon what appears to be true even if it turns out to be false, provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable. Belief alone, however sincere, is not sufficient, for it must be founded on circumstances which make the belief reasonable.” The same rule as applied to an arrest without warrant is stated in 5 C. J. 417, as follows: “The reasonable and probable grounds that will justify an officer in arresting without a warrant one whom he suspects of felony must be such as would actuate a reasonable man acting in good faith. The rule is substantially the same as that in regard to probable cause in actions for malicious prosecution, and there is no difference in its application between arrests for felonies and arrests for misdemeanors. The necessary elements of the grounds of suspicion are that the officer acts upon a belief in the person’s guilt, based either upon facts or circumstances within the officer’s own knowledge, or upon information imparted to him by reliable and credible third persons, provided there are no circumstances known to the officer sufficient to materially impeach the information received. It is not every idle and unreasonable charge which will justify an arrest. An arrest without a warrant is illegal when it is made upon mere suspicion or belief, unsupported by facts, circumstances or credible information calculated to produce such suspicion or belief.” (See, also, Words & Phrases, • Second Series, 1224 et seq.)

The record before us discloses these facts: At the time of the seizure the sheriff knew that a banquet was being given in the Hotel Deer Lodge and that some of the persons present showed the effects of having been drinking intoxicating liquors. It was about 9:30 of the evening of April 30 while the banquet was in progress, and defendant was in an alley immediately west of the hotel. He was carrying the demijohn which was encased in a wicker cover and only partially concealed in the handbag. The defendant was then and for a long time prior thereto had been in the employ of one of the persons attending the banquet and was then acting as such employee, and the sheriff had been informed that he was transporting liquor to deliver it to his employer or to some other person at the banquet. We need not stop to consider whether this evidence would be sufficient to convict the defendant in a criminal action. It is only necessary to determine whether the sheriff had probable cause to believe that the law was being violated, and we have no hesitation in saying that the facts and circumstances were sufficient to justify him in making complaint and securing a warrant for the arrest of Mullen, and if the warrant had been secured and the arrest had been made, the right of the sheriff to seize the liquor and container and retain them as evidence against the accused could not be gainsaid. (Kneeland v. Connolly, 70 Ga. 424; State v. Hassan, 149 Iowa, 518, 128 N. W. 960; note to State v. Mausert, L. R. A. 1916C, 1017.) Speaking upon the subject, the supreme court of Maine said: “It is well settled that an officer making an arrest upon a criminal charge may also take into his possession the instruments of the crime and such other articles as may reasonably be of use as evidence upon the trial. The officer not only has the lawful power to do so, but he would be blameworthy if he failed to do so. The maintenance of public order, and the protection of society, by efficient prosecution of criminals, require it. The title to the property remains in the owner, but the lawful possession is temporarily in the officer for evidentiary purposes, subject to the order of the court.” (Getchell v. Page, 103 Me. 387, 125 Am. St. Rep. 307, 18 L. R. A. (n. s.) 253, 69 Atl. 624.) The question of unreasonable search is not involved. (State v. Quinn, 111 S. C. 174, 3 L. R. A. 1500, 97 S. E. 62.) There was not any occasion for the sheriff to procure a search-warrant. The defendant was openly transporting the articles in the immediate presence of the officer.

Having determined that the circumstances would have justified the sheriff in making complaint against Mullen and in securing a warrant for his arrest, it follows from what has been said that he would have been justified in arresting defendant without a warrant, and since his authority to seize the articles without process was coextensive with his authority to arrest without a warrant, the seizure was not unlawful, and the motion to quash was properly overruled.

There does not appear to be any reversible error in the record, and the judgment is affirmed.

Affirmed.

Mr. Justice Charles H. Cooper and Honorable H. H. Ewing, District Judge, sitting in place of Mr. Justice Reynolds, disqualified, concur.