DISSENTING OPINION. I dissent from that part of the opinion of the court which decides that oral evidence may be competent to aid the affidavit for a search warrant, for the reason that no question is presented by the record which calls for such opinion and decision by the court. Attention is called to the apparent decision that oral evidence may be competent to aid the affidavit, provided by § 31, Ch. 48, Acts 1925, § 2746 Burns 1926, to lay a sufficient foundation of evidentiary facts to support a judicial finding of probable cause for the warrant to search and seize. The decision of the court by the majority opinion rests upon the allegation in the affidavit in question, as quoted, "that intoxicating liquor is possessed in violation of the law on the premises hereinafter described; . . ." No question for decision by this court is presented by the record which is based upon, or which has to do with, evidence aliunde the affidavit, to support a judicial finding of probable cause by the magistrate.
I dissent from the decision, expressed in the majority opinion of the court, which decides that § 31, Ch. 48, *Page 205 Acts 1925, does not offend § 11 of Art. I of the Constitution. The constitution, generally, prescribes a form of civil government; the officials who are to cause the government so instituted to function; and the limitations upon the majority of the citizens who act solely through chosen representatives. The Bill of Rights of the people is embodied in Art. I of the Constitution. This right is not concerned with the constitutional form, or setup of government, or of its agencies. It is a pre-eminent assertion of the right of each individual citizen of the state, in the particular stated, notwithstanding the form of government, its operation, and the power of even an overwhelming majority of the citizens of the state. This right is sacred, and therefore, it must be kept free from injury or external violence; it may not be profaned in the least, to the hurt of a citizen; these constitute some of the reasons that this right is construed most liberally to guarantee the right to the people. Gouled v.United States (1921), 255 U.S. 298, 304, 41 Sup. Ct. 261, 65 L.Ed. 647; Byars v. United States (1926), 273 U.S. 28, 47 Sup. Ct. 248, 71 L.Ed. 520; Boyd v. United States (1886),116 U.S. 616, 635, 6 Sup. Ct. 524, 29 L.Ed. 746, and that statutes which are related to this right must be strictly construed to guarantee this right to the people. Guenther v. Day (1856), 6 Gray (Mass.) 490; Leonard v. United States (1925), C.C.A., 6 F.2d 353, 355. If these are sound principles of law, it follows that this section of the statute (§ 31, Ch. 48, Acts 1925) must be strictly construed in favor of the right retained by section 11 of Art. I of the Constitution, and in favor of the people who are constantly within the sphere of the protection of the right. § 31 of the Act, is incomplete in itself, and so recognized by the General Assembly, in wording it, for it depends upon another act or acts of the General Assembly. The issuing of the warrant and the *Page 206 execution of it must be done, "as in other cases where such warrants are issued as now provided by law." The other laws which provide for search and seizure are, (1) that part of "An Act Concerning Criminal Offenses," approved March 10, 1905, Ch. 169, Acts 1905, designated "Search Warrants," embraced within sections 56 to 61, inclusive, §§ 2085 to 2091, inclusive, and the section of the same Act (§ 588) which concerns cruelty to animals, etc., § 2770 Burns 1926; (2) § 4 of the act concerning trade marks on bottles, etc., Ch. 178, p. 689, Acts 1917, § 14420 Burns 1926. The only "other cases" is the Act of 1905, supra, which provides the form of the affidavit upon which the warrant is issued, and the form of the warrant, and the authority given to justices of the peace to issue such warrants by § 56 of the Act of 1905, supra, § 2085 Burns 1926. The authority given to justices of the peace by § 56 of the Act of 1905, supra, is that they "may issue warrants to search any house or place"; and by § 588 of the Act of 1905, supra, is "if satisfied that there is a reasonable cause for such belief, shall issue and deliver a search warrant"; and by § 4 of the Act of 1917,supra, is that, "the said court must thereupon issue a search warrant, ." (My italics.) The General Assembly know the language of the constitution, and they are charged with a knowledge of the specific right of the people as worded by § 11 of Art. I of the Constitution. Its members know all of the acts passed by the General Assembly, which concerned § 11, Art. I, supra, when it passed the Act in 1925, in which is § 31. It may not be answered by this court that the General Assembly, when it passed the bill in which § 31 was incorporated, that it did so lightly and without due consideration of the Act of 1905, supra, to which it pointedly referred. It knew that it used the word "may" in the Act of 1905 (§ 56, supra, § 2085 Burns 1926) and that it was replacing *Page 207 that word by the word "shall" in a like context in § 31, supra. It did not make the change lightly, it made the change knowingly, meaning what it said, unlawfully believing it had the power to so direct the issuing of the warrant. This court judicially knows of a great many instances where the General Assembly has misconstrued its power. The word "shall" in its setting in § 31,supra, is so plain therein, and in contrast with the use of the word "may" in the Act of 1905, supra, that it is not subject to construction other than the plain and exact meaning of the word, together with the language in which it has its setting. Given the plain meaning, it most plainly prevents the magistrate from exercising judicial power, he acts ministerially only. No such usurpation of power by the General Assembly, encroaching upon the judicial department of this government can be countenanced, in the case now presented, without offending this, one of the greatest personal rights reserved to the people. I am of the opinion that the General Assembly intended what it plainly said, and that what it so said by § 31, supra, is unlawful because it violates § 11, Art. I of the Constitution, and that, therefore, § 31, supra, is unconstitutional and void.
I dissent from that part of the opinion of the court which denies to appellee the right to argue his case orally to the court. Rule 26 of the court unconditionally grants to parties to appeals the right to argue orally their cases when timely request is made. This rule provides that, "otherwise, the court in its discretion will refuse the application." Judicial discretion here to deny oral argument is not well grounded.
I dissent from the judgment of the court as shown by the opinion of the majority. This court is without jurisdiction to reverse the judgment of the trial court in this case. The judgment of the trial court is one of acquittal of the charge upon which appellee was tried. *Page 208 Appellee, as shown by the record, was in jeopardy. § 14 of the Bill of Rights, Art. I, Const.
I am of the opinion that the judgment of this court should be that the decision of the trial court be sustained, and that the appeal is not sustained.