In re Geschwinder

Olive, Ulster county, N. Y., for the purpose of unlawful sale and distribution within this state.”

The sources of such information and the grounds for such belief are stated as follows:

“That on the 1st day of May, 1910, complainant and one Newton dine visited said premises and saw purchased by a person unknown to complainant certain liquors, to wit: one gill of whisky, which was then and there drunk, and for which the bartender marked down the price in a book held by the stranger.”

The complainant further saw another person to him unknown purchase one gill of lager beer and drink same on premises, after which he handed the person serving the same .a book, which said person marked in and handed back.

The complainant and said Newton Cline entered said building and asked the bartender for a drink of lager beer. He refused, saying that “they had no book.”

The complainant also states that the sales were made in what is known as a no license town. Upon May 27th a warrant was issued, reciting that there was probable cause for believing that George Bovee keeps stored and has deposited liquors upon certain described premises, for the purpose of unlawful sale and distribution within the state, and commanding any peace officer in the county of Ulster to search the described premises for liquors. Upon the 10th day of June, 1910, the peace officer to whom the warrant had been delivered returned that he had seized, upon the premises described in the warrant, 27 half barrels of lager beer, 4 cases of lager beer, and 7 bottles of lager beer. At the time of the filing of the return the owners of the liquors seized appeared specifically and moved to quash the writ and dismiss the proceedings, upon the ground that the facts stated in the complaint were not sufficient to justify the finding of probable cause that liquors were kept for the purpose of illegal sale and distribution.

The allegation as to possession is upon May 1st, 26 days prior to the granting of the warrant. The condition alleged upon May 1st may or may not have continued until May 26th. The question under the statute is not whether the condition actually existed upon May 26th, but, rather, was there probable cause to believe it did. 'In addition to the possession, the 'complaint shows that upon May 1st certain liquors were sold by a bartender, and the sales were charged in books presented by the persons to whom the liquors were sold. These additional facts are. sufficient to justify the conclusion that a continuing business was done at this place. This proceeding is to be treated as one in rem, and not criminal in its nature. Clement v. Two Barrels of Whisky, 136 App. Div. 291 , 120 N. Y. Supp. 1044 . The presumption of civil law, therefore, that a condition established is presumed to continue, may well, within reasonable limitations as to time, be here applied.

The officer’s return, showing 27% barrels of lager beer found upon the premises, would not justify the search and seizure, if no facts had been alleged in the complaint; but we cannot close our eyes "to the situation found, and it becomes our duty to put the broadest possible construction upon the complaint and to make the language used, if possible, square with the facts found.

The next question is: Were the liquors kept for illegal purposes? Possession alone is not illegal. The illegality lies in the intent with which they are kept. This intention runs to the future use, and is determined by the past acts of the owner, the place where the liquors are kept, the manner of keeping, the quantity, etc. The past acts charged are sales. Upon this motion, that allegation alone is sufficient to establish an illegal intent.

It is also urged that the recitals in the warrant, that liquors are kept for both sale and distribution, are not sustained by the allegations of the complaint. The facts alleged certainly justify the finding that they were kept for illegal sale. They are probably not sufficient to sustain a finding that they were kept for an illegal distribution, placing upon the word “distribution” the narrow construction given it by the liquor tax law. Were the recitals in the alternative, the warrant would have been clearly bad. The recital as to distribution not being justified by the facts stated may be treated as surplusage; and there remains a finding as to sale which is sufficient to sustain the warrant.

It is needless to say that warrants of this nature should never be issued upon mere suspicion. On the other hand, the fact stated in the moving papers should receive, at the hands of each magistrate, such a reasonable interpretation as will give force and effect to the end sought by this statute.

Motion denied, answer to be filed on July 12th.

Motion denied.