Opinion
Docket No. 123.
Submitted June 17, 1926.
Decided July 22, 1926.
Exceptions before judgment from Muskegon; Vanderwerp (John), J. Submitted June 17, 1926. (Docket No. 123.) Decided July 22, 1926.
John Galnt was convicted of violating the liquor law. Reversed, and defendant discharged.
Alexis J. Rogoski, for appellant.
Andrew B. Dougherty, Attorney General, R. Glen Dunn, Prosecuting Attorney, and Robert H. Dunn, Assistant Prosecuting Attorney, for the people.
Defendant, charged with and convicted of manufacturing and possessing intoxicating liquor, seeks review on exceptions before sentence. The evidence against him was obtained by a search of his private dwelling house, initiated by an affidavit sufficient both in form and substance. But the warrant on which the search was made was void for the reason that in it the material facts alleged in the affidavit were "neither recited by quotation nor stated in substance," as required by People v. Moten, 233 Mich. 169, and Act No. 338, Pub. Acts 1917, § 27 (Comp. Laws Supp. 1922, § 7079 [27]). This matter was raised by motion to suppress and discharge, timely made. The motion was denied, the court saying:
"In view of the fact that there is no affidavit of the respondent or any showing whatever that the liquor belongs to him, it is my opinion that the motion, therefore, should not be granted. My opinion is based on the case of People v. Ninehouse, 227 Mich. 480."
We think the case cited not in point. Defendant might possess or manufacture liquor unlawfully without being the owner of it. The evidence against defendant was procured by a search of his private dwelling house. The search warrant was void — the search unlawful, a violation of his constitutional right (art. 2, § 10) that his house shall be secure from unreasonable searches and seizures. All this appeared on the face of the record and was presented by the motion to suppress and discharge. The motion must prevail.
Reversed. Defendant discharged.
BIRD, C.J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, and McDONALD, JJ., concurred.