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Show j In sustaining a demurrer in the case 1 of the state against Joseph Laucirica. j ft ' Judge A. W. Agee, of the district court I A: 5 today, handed an exhaustive opinion upon Utah's prohibition law. , Ho sustained its intents and denied ,p the right of an individual to reclaim J Intoxicating liquors confiscated under Ax i a search and seizure warrant, and held )h j that an acquittal by a justice of the il peace did not act as a bar to a peti- ' 1 V" 0D for an order destroy. A justice court, the opinion declared, was not of concurrent jurisdiction with a district court and could not, therefore, become a bar because of a claim to original jurisdiction to any action which might be filed- In the higher court Judge Agee, early in his decision, took an incidental rap at the district attorney's ofTice by declaring that the state had cited but one case in support of Its contention and that It largely was foreign to the questions involved. The findings, the court stated in handing hand-ing down his opinion, were the result of his own efforts in ascertaining tho law. Judge Agcc's Decision In part, the decision is as follows: "This is a proceeding to forfeit certain cer-tain intoxicating liquors which were seized by the sheriff of this county, Sept 20, 1917, on a search and seizure warrant issued by Honorable A. F. Pratt, one of the judges of this court, on an affidavit or complaint made by one R. H. Soulc, a deputy sheriff of this county. "On the matter being set for hearing and notico thereof given as required by Sect. 17, of the Act of Feb. S. 1917, commoniy cniieu ine i-roniDiuon Law," Joseph Laucirica appeared and, on his own motion, was made a party defendant, and filed an answer to the affidavit on which the warrant was issued, is-sued, in which he admits the statements state-ments in tho first paragraph of the affidavit, af-fidavit, and alleges that at the time the liquors In question were seized tho sheriff took into his possession considerable con-siderable glassware, and other personal per-sonal property belonging to him, the exact description 1 of which he is unable un-able to give, and that the same was then in the possession of the court; and denies all the other allegations of the affidavit. Defendant's Contention He further alleges, that, on or about, September 22. which was three days after the seizure of the liquors he was arrested. upon a complaint, filed in the municipal court of Ogden city, charging charg-ing him with having unlawfully in his possession tho intoxicating liquors mentioned and described in said affidavit, affi-davit, or complaint, and that a trial was had upon said issue, and a judgment judg-ment was duly entered on Oct. 26, to the effect that said defendant was not guilty of having said liquors unlawfully unlawful-ly in his possession. He then charges: "That said charge was the same Identical charge as is made in this action, and that the proceedings in both of said actions were between the same parties, and that the issues is-sues in both of said actions are identical, and that the same evidence evi-dence produced and used In tho Municipal Court will be necessary to be used and produced in this court, and that all matters and things pending in this action, or proceeding, have already been ad judicated in favor of this defendant, defend-ant, and that by reason thereof said former adjudication is a complete com-plete bar and answer to this proceeding." pro-ceeding." To this plea of former acquittal as a bar to this proceeding the county attorney at-torney has filed a general demurrer. No Prosecution I have had no material assistance from the prosecuting officers in considering con-sidering the question raised by this demurrer. It is true that the county attorney appeared at the time the hearing of the demurrer was had, and briefly argued his demurrer and cited one case in support of his contention, but stated, at the lime, that he had not read that case. On examination I found that the only part of the decision decis-ion in that case which is at all applicable appli-cable In this is tho statement that a criminal prosecution for having liquors unlawfully in one's possession, and a proceeding to forfeit the liquors are separate and distinct proceedings; one being a criminal prosecution, and the other being a proceeding in rem against the liquors. Since the argument argu-ment the county attorney has called my attention to another case, which will be hereafter noticed, which he supposes sustains the contention of the defendant. I have, therefore, been compelled myself to assume the burden of searching search-ing for authorities bearing on the question at bar, of which I have found many, In addition to those cited by counsel. Quotes Utah Law Section 14, of tho Act of February 8, 1917, commonly known as the "Prohibition "Pro-hibition Law," of this state, makes it the duty of any district, county, city, or town attorney or any peace officer or other person who has probable cause to believe that liquors are possessed, pos-sessed, manufactured, sold, bartered, given away or otherwise furnished in violation of this Act, or are kept for tho purpose of selling, bartering or giving away, or otherwise furnishing in violation of law, to forthwith mnko and file with the Judge of the District Court, or any city, town or precinct Justice of the peace, written Information Informa-tion to that effect, and that thereupon, If the judge or Justice of the peace shall find probable cause to believe that the facts stated in tho information informa-tion are true, he shall issue a search warrant directed to any peace officer in the county, describing the liquor and place described In said Information, and the person named or described in said information as the owner or keeper keep-er of said liquors, and commanding the officer to search thoroughly said place, and on finding liquors in unlawful pos- session or use to arrest the persons found therein and bring them before said court and to solze said liquors with the vessels containing them, and all the implements, furniture and fixtures fix-tures used or kept for such illegal acts and keep the same secure until final action be had thereon. This section further requires the officer of-ficer to whom the warrant shall be delivered de-livered to execute it and make return of his doings to said judge or justice, with an itemized Inventory of all property pro-perty and things seized; and also, a list of all persons in whose possession the same were found. When Jurisdiction Is Lost Section 17 provides, among other tnings. mat u me warrant nas been is- sued by a justice of the peace, and by said return it appears that liquors, vessels or other things used for the purposes of selling, or otherwise disposing dis-posing of such liquors contrary to law, have been found upon the premises described de-scribed in said warrant, the Jurisdiction Jurisdic-tion of the justice of the peace shall thereupon cease, except that the justice jus-tice issuing such warrant shall forthwith forth-with certify the record and all files to the district court of the county in which said premises are situated, and from tho time of filing such records and flies with the clerk of said court said court shall have jurisdiction to proceed with said cause, and determine ' j the merits thereof as provided by law, and the clerk shall fix a time for hear- I ing said matter of which notice shall be given as provided in the same section. sec-tion. In this case, the clerk gave notice of time for hearing and the claimant, Joseph Jo-seph Laucirica, appeared and clalmea certain goods in question, and on his own motion was made a party defendant, defend-ant, as is provided for in said Section 17. "This section further provides that if it shall be found that the liquors, vessels or other property was, when seized, owned or kept by any person for the purpose of being sold or used in violation of law, the court shall render judgment that said liquors, vessels or other property, or any part thereof, bo forfeited. Forfeited and Destroyed. "Section 18 provides for the destruction destruc-tion of liquors in case it should be finally decided that they should be forfeited, for-feited, but that if it should be finally orty so seized are not liable to forfeiture, for-feiture, that the same should be returned re-turned to the owner or the place where they were seized. "It is significant that the provisions of section 14, to which I have referred, provide that the warrant shall require the arresting officer to bring the person per-son arrested, if any one, before the Judge or justice issuing the warrant, and that he must make return of his doings to such judge or justice, with an itemized inventory of all liquors, property or things seized, and further by section 17, that where the warrant has been issued by a Justice of tho peace, and it appears from the return that any liquors, vessels or other things used for the purpose of selling or otherwise disposing of such liquors contrary to law, have been seized, then tho jurisdiction of the justice of tho peace shall thereupon cease, and the case shall bo certified to the district court for hearing; and, further, that upon the final hearing, if it shall be found that the liquors, vessels or other property was, when seized, owned or kept by any person for the purpose of being sold or used In violation of lw that it should bo forfeited. "A Judgment, in order to constitute a bar, must have been rendered by a court of concurrent jurisdiction, or ono having Jurisdiction over tho matter in controversy. Judgment by Justices. "Therefore, since the Justice of tho peace would have no Jurisdiction to condemn liquors seized under the search and seizuro warrant, his jurisdiction juris-diction in the matter would not be concurrent with thnt of the district court and an acquittal of the claimant on a criminal prosecution for having liquors in his possession for an unlawful unlaw-ful purpose, it seems to me would be no bar to a proceeding in re to forfeit such liquors, especially where the criminal prosecution, as in this case, was Instituted after the commencement commence-ment of the proceeding in rem to forfeit for-feit the liquors. "If, after a Judge of this court has Issued a search and seizure warrant, as provided by tho provisions of law, which I have cited, and intoxicating liquors have been seized and return made to him upon such warrant, the county attorney, or any other person, may start a criminal prosecution before be-fore a justice of the peace, where, If the defendant were convioted, he can only be punishod by fine and imprisonment, imprison-ment, and no forfeiture of thq liquors can be declared, as provided for in the act referred to, and such prosecution would be a bar to the proceedings in this court, then the provisions in rcf r erence to the certification of the case to the district court, whore liquors have been seized, and tne trial of the matters in this court would be abortive, abor-tive, for, according to the authorities relied upon by counsel for the defendant, defend-ant, it would make no difference whether the defendant in the crimipal prosecution was convicted or acquitted, the judgment In either case, having tho same effect on a proceeding in rem to forfeit the liquors. What the Law Intends. "It is apparent to my mind that the legislature Intended that when liquors have been seized under the provisions of this act, the whole matter should be heard in the district court, and that no judgment of any justice of the peace should bo a bar to the proceeding proceed-ing in rem to forfeit the contraband property. "But even under the authorities cited by counsel for tho claimant, tho judgment in a criminal proceeding, as pleaded in this case, can constitute no bar to this proceeding for the reason that in the criminal prosecution, in ordor'to secure a conviction of the defendant, de-fendant, tho state was bound to prove that he unlawfully had In his possession posses-sion the intoxicating linnors; forfeiture for-feiture of liquors it is not necessary neces-sary for tho stato to prove in whoso possession the liquors were at tho time. All that is necessary is to prove that liquors were being kept at the place described in the affidavit, or complaint, for the unlawful purposes mentioned in the act, without regard to the person in whose possession such liquors were kept; such liquors may be condemned when seized, even though not found in the possession of any person, provided it Is made to appear ap-pear that they were being kept or used unlawfully. Tho object and intent of the legislature legisla-ture clearly was to prevent the manufacture, manu-facture, sale, bartering, giving away or otherwise furnishing of Intoxicating Intoxicat-ing liquors, or keeping Intoxicating liquors for the purposo of Celling, bartering, bar-tering, or giving away, or furnishing them in violation of tho law, or In any manner otherwise than as provided In the act in question, and to treat auch liquors as contraband and smite them wherever found. Authorities Agree "All the authorities agree that there must be an identity of parties as well as of offenses, in order that a conviction convic-tion or acquittal In one case shall bo a bar to the prosecution of another. Now, the judgmont which is pleaded as a bar to this proceeding, was a criminal crimi-nal prosecution of the individual Joseph Jo-seph Laucirica, while this proceeding 4 is against the thing sought to be forfeited for-feited as contraband, viz: over 800 gallons of intoxicating liquors. "Proof that the liquors in question were kept by any person for a purpose pur-pose which subjects them to forfeiture would be sufficient In this proceeding, but would not have been sufficient to convict the defendant in the criminal prosecution ,as the state must prove in that case that the accused himself was guilty of the offense charged, and In that case a judgment must be one In personam, while in this proceeding no personal judgment can be rendered IH against the defendant, except for costs, lfl but the judgment goes against tho thing, in this case the liquors, in case it is determined that they were kept by any one in violation of law. jfl (Continued on page 14.) IH r-OO oo JOOGE AGEE 11 liquor mm (Continued from Pago 11.) Guilt Must Be Proved "As I have shown the personal guilt of the defendant must have been proven, pro-ven, and beyond a reasonable doubt in the prosecution pleaded as a bar to this proceeding, while in this proceeding proceed-ing such personal guilt would not have to be proven. The statute expressly provides, Section 17, that if it shall bo t found by tho court or jury that the liquors are Itept by any person for the, unlawful purposes named, such liquors shall be forfeited, and although the' party has appeared and claimed own-' ership of the property seized on judg-1 ment of punishment can be rendered i against him in this proceeding. "The case of Slate vs. Cobb, to which my attention has been called byi the county attorney since the argu- . ment of the case, and which he seems : to think supports the contention of the defendant, I think is readily distin-gulshahlo distin-gulshahlo from the case at bar. In Jhat case, at the same time the search warrant was Issued, the same justice i issued a warrant for the arrest of tho1 defendant. The information against the ! defendant personally charged that on or about the 12th day of June, 1902, he wrongfully kept intoxicating liquors for sale in violation of law. He was tried and acquitted by the Jury.. The information In thp proceedings to forfeit for-feit the. liquors charged that the liquors were owned and kept by the defendant Cobb, and were intended by him to be sold in violation of law. Laws of State Differ "It, therefore, appears that in both proceedings the defendant was charged charg-ed with a violation of the criminal laws of tho state. In addition to this under the laws of tho state of Iowa, the justice of the peace had jurisdic- tlon to determine the forfeiture of the liquors, whilo in this state, as I have shown the justice of the peaco has no jurisdiction whatever to decree a forfeiture for-feiture of any intoxicating liquors seized under a search and seizure warrant. war-rant. "In the case at bar tho municipal court ,or the judge thereof, acting as a justice of the peace, had no jurisdiction jurisdic-tion over the property seized, and could not have rendered any judgment of.forfeiture even hacr tne defendant in tho criminal prosecution, which is pleaded as a bar to this proceeding-, been found guilty beyond a reasonable doubt. "Therefore, it seems to mo that to j hold that tho judgment of acquittal in that case in a court which has no jur- 1 isdlction whatever over the i propertv i seized bars this court, which is given ! exclusive jurisdiction in such matters. I from any investigation of the charge against the liquors would defeat the beneficent objects of the law and the Intention of the legislature. It is clear to my mind that the legislature never intended that arter liquors have been seized under a search and seizure warrant, war-rant, and the district court has taken jurisdiction of such liquors a prosecution prosecu-tion directed by the county attornev, or any other person, before a justice' of the peaco, and a judgment either of conviction or acquittal had, should constitute -a bar to the proceedings in rem against the liquors. Demurrer Is Sustained "Indeed, I am at a loss to understand why the county attorney, after the liquors in question had been seized and returned on the search and seizure warrant made to this court, instituted i a proceeding against Laucirlca per- J sonally in a court which has no jurisdiction juris-diction to hear and determine the ' question of the forfeiture of the liquors "By Section 3 of tho Act of Febru- ' : ary Sth, 1917, it is provided: ' "Except as hereinafter provided the manufacture, sale, keeping or ; , storing for sale In this state, or offering or exposing for sale, or importing, carrying, transporting, advertising, or serving of liquors, are forever prohibited in this stale. It shall be unlawful for any K person, within this state knowing- JipH ly to have In his or its possession k any intoxicating liquors, except as ir?r in this Act provided." 34. "Then follows the provisions by which a person may lawfully come into possession of and hold and dm- H pose of intoxicating liquors, so that H all that is necessary to adjudge a for H feiture of intoxicating liquors is for H the state to prove that the status of H such liquors was not in accordance H with the provisions of the law . B "The demurrer to. the plea in bar Is B sustained B |