
    State of Maine by Complaint vs. Peter Bradley.
    Cumberland.
    Opinion January 8, 1902.
    
      Constitutional Law. Intoxicating Liquors. Search and Seizure. Complaint. Arrest. Art. /, § 5, Mame Constitution, li. S., c. 21/, § SO.
    
    That portion of R. S., c. 27, g ¡59, which authorizes an officer to seize intoxicating liquors without a warrant and to keep them in some safe place for a reasonable time until he can procure a warrant, gives no new or additional authority to search premises. It merely authorizes a seizure without a warrant when such seizure can be made without the unreasonable search which is prohibited by the constitution. To this extent the statute is constitutional and has been frequently upheld by this court. In the present case it does not appear that any search was made, consequently the seizure without a search was unobjectionable.
    Upon the trial of a respondent upon the charge contained in a search and seizure complaint and warrant of keeping intoxicating liquors in the place described in the complaint, intended for unlawful sale in this State, if some of the liquors mentioned in the complaint and warrant were found and seized in the place therein described, and were kept there by 1he defendant intended for unlawful sale, it is immaterial that other liquors were described in the complaint or were seized by the officer and included in his return upon the warrant.
    If, in the case of a seizure of intoxicating liquors without a warrant, a respondent is arrested at the time of the seizure and before the issuance of the warrant, even if such arrest is illegal, it in no vmy affects the validity of the complaint and warrant, and cannot be taken advantage of by a respondent charged with having intoxicating liquors in his possession for an unlawful purpose, either before or after conviction.
    Exceptions by respondent.
    Overruled.
    This case came up from the Superior Court of Cumberland county. A.pril 17, 1901, deputy sheriffs of Cumberland County twice searched the premises on Commercial street in Portland known as the “Old Dyer House,” for intoxicating liquors intended for illegal sale, as empowered by the latter portion of 11. S., c. 27, § 39, intending to procure a warrant later.
    On the following day, April 18, a complaint was made to the Portland Municipal Court, which, in addition to the usual form in use in cases where the warrant is obtained prior to the seizure, contained the following allegation, viz:—
    “And the said Obed F. Stackpole on oath further complains that he, the said Obed F. Stackpole, at said Portland, on the seventeenth day of April, A. D. 1901, being then and there an officer, to wit, a deputy sheriff, within and for said county, duly qualified and authorized by laAV to seize intoxicating liquors kept and deposited for unlawful sale and the vessels containing them, by virtue of a Avarrant therefor, issued in conformity with the provisions of laAV, did find upon the above described premises:
    •One jug containing about one gallon of whiskey;
    Nine bottles each containing about one-half pint of Avhiskey;
    Three bottles each containing about one pint of Avdiiskey;
    Intoxicating liquors as aforesaid and vessels containing the same then and there kept, deposited and intended for unlawful sale as aforesaid, Avithin the State by said Bradley, and did then and there by virtue of this authority as a deputy sheriff as aforesaid, seize the above described intoxicating liquors and the vessels containing the same, to be kept in some safe place for a reasonable time, and hath since kept and does still keep the said liquors and vessels to procure a warrant to seize the same.”
    Upon this complaint a warrant was issued and returns AArere made thereon under the date of April 17, 1901, showing the seizure of the liquors described in the complaint and the arrest of the respondent on that day. ■
    There Avas a conviction in the Municipal Court and. an appeal to the Superior Court of Cumberland county, where the respondent Avas tried before a jury and found guilty.
    The judge’s charge in the Superior Court contained the .following:
    “The point has been raised by the attorney' for the respondent that, included in that warrant, were other liquors which Avere seized someAA'hat later than the liquors seized at the first visit....... Now, as I say, even though other liquors may have been included, if the return covers the liquors that Avere seized on the first visit, the return is sufficient, because the greater includes the less.”
    After the verdict against him, there was a motion by respondent in arrest of judgment, claiming that the complaint Avas not sufficient; Avas not in legal form; was bad for duplicity; that it showed on its face no authority by Avliich it was issued; and that the return was double, uncertain and defective.
    The motion in arrest was OA'erruled, and the exceptions relied upon Avere to this ruling and the foregoing instruction to the jury.
    
      It. T. W/vitehouse, county attorney, for State.
    
      D. A. Mealier, for respondent.
    Sitting: Wisavele, O. J., Emery, Whitehouse, Strout, Savage, Powers, JJ.
   Wiswell, C. J.

A deputy seized certain intoxicating liquors in a dAvelling-house, Avithout a Avarrant. Upon the next day, and Avithin tAventy-four hours thereafter, he made complaint to a municipal court having jurisdiction and obtained a Avarrant against the, liquors previously taken, and then held by him, until he could obtain the Avarrant. The respondent Avas tried in the municipal court upon the charge of keeping these intoxicating liquors in the place described in the complaint, intended for unlawful sale in this state. He Avas found guilty by that court and appealed to the Superior Court in that county. At the trial in the latter court, Avliere he Avas also found guilty by a jury, he took exceptions to certain instructions of the presiding justice, to his refusal to give certain requested instructions and to the overruling of his motion in arrest of judgment.

It appears from the bill of exceptions, that the complainant, together AA’ith another officer, made tAA'o visits to the dAvelling-liouse ou the night preceding the issuance of the AArarrant; that upon one of these visits certain of the intoxicating liquors mentioned in the complaint and Avarrant and in the officer’s return upon the AArarrant Avere taken from the person of the defendant, Avhile the other liquors mentioned in.the complaint and in the return upon the warrant were found in the place described in the complaint and taken by them. For this reason, the respondent requested the presiding justice to instruct the jury that if the return was made of two seizures, the complaint and warrant became invalid if not amended, and that the warrant was unauthorized, illegal and void as a matter of law. The court refused to give these instructions, but did instruct the jury as folloAvs: “Now as I say, even though other liquors may have been included, if the return covers the liquors that were seized on the first visit, the return is sufficient, because the greater includes the less.” The liquors seized on the first visit, referred to in the foregoing instruction, were those found upon the premises.

The respondent was tried upon the charge contained in the complaint of keeping intoxicating liquors in the place described in the complaint, intended for unlawful sale in this state. If some of the liquors mentioned in the complaint and warrant Avere found and seized in the place therein described, and Avere kept there by the defendant intended for unlaAvful sale, he aatis guilty of the charge. It makes no difference that other liquors Avere described in the complaint, or Avere seized by the officer and included in his return, so filias this proceeding is concerned, provided that some of the liquors mentioned in the complaint and Avarrant Avere found and seized, or had been previously found and seized by the officer, before obtaining the warrant, in the place described in the complaint. The rulings therefore in this respect Airere correct.

In the defendant’s argument it is urged that a search without a Avarrant is in violation of our constitution. But the case does not show that any search Avas made. That portion of B. S., c. 27, § 39, Avhich provides that, “in all cases Avliere an officer may seize intoxicating liquors or the vessels containing them, upon a Avarrant, he may seize the same without a Avarrant, and keep them in some safe place for a reasonable time until he can procure such a Avarrant,” gives no neAV or additional authority to search premises. It merely authorizes a seizure Avithout a AA^arrant AA'hen such seizure can be made Avithout the unreasonable search Avhicli is prohibited by the constitution. To this extent the statute is constitutional and lias been frequently upheld by this court. State v. McCann, 59 Maine, 383; State v. LeClair, 86 Maine, 522.

Again, it is argued that the respondent was arrested at the time of the seizure and before the warrant was obtained. If this was so, and if such arrest was illegal, it can in no way affect the validity of the complaint and warrant, and it cannot be taken advantage of by a respondent charged with having intoxicating liquors in his possession for an unlawful purpose, either before or after conviction. There was no reason why the defendant’s motion in arrest of judgment should have been sustained.

Jivceptions overruled.  