State v. Soucie , 109 Me. 251 ( 1912 )


Menu:
  • Bird, J.

    The question for determination in this case arises upon demurrer of defendant to a complaint and warrant under R. S., c. 29, § 49, authorizing the process for “search and seizure” of intoxicating liquors. The demurrer was overruled below, and the case is here upon exceptions of defendant.

    In support of the demurrer defendant urged that neither the complaint nor the warrant contains any express allegation, nor any allegation from which by necessary inference or intendment it appears that said dwelling house therein described, or any part of it, is used as an inn or shop, or for purposes of traffic, nor did the magistrate before whom the complaint was made allege in said-warrant that he was satisfied by evidence presented to him that intoxicating liquor was kept in said dwelling house or its appurtenances intended for illegal sale, thus invoking the provisions of R. S„ c. 29, § 52.

    We think the exceptions must bé sustained. The complaint describes the place of alleged unlawful deposit to be “a certain shop and dwelling and its appurtenances situate on the easterly side of highway street in said Grand Isle occupied by said Florent Soucie as a store and dwelling.”

    There is no allegation that the dwelling or part of it is used “for the purposes of traffic” and we cannot regard the words “shop and dwelling” and “occupied as a store and dwelling” as, or equivalent *254to, an allegation that the dwelling house “or some part of it, is used as an inn or shop.” There may be two distinct buildings. It is urged by the State that the use of the words “its appurtenances” shows that the shop and dwelling are identical. But “its” would naturally refer to dwelling, and might refer to shop and the State • claims it refers to both. If this be so, it cannot be said that the complaint possesses precise and sufficient certainty or that the allegation is made with reasonable precision and directness: State v. Paul, 69 Maine, 215, 218; State v. Whalen, 85 Maine, 469, 472; State v. Hussey, 60 Maine, 410; see also State v. Spencer, 38 Maine, 30, 32; McGlinchy v. Barrows, 41 Maine, 74, 77.

    Exceptions sustained.

    Demurrer sustained.

Document Info

Citation Numbers: 109 Me. 251

Judges: Bird, Hanson, Harry, Sprar, Whitrhousb

Filed Date: 6/21/1912

Precedential Status: Precedential

Modified Date: 9/24/2021