White Pine news. [volume] (East Ely, Nev.) 1920-1923, 1922-06-04
ALLEGED BOOTLEGGER
WINS ON SHOWDOWN

The prosecution II the case of thf
state of Nevada against W. l.. Tuck
charged with having in his possession
intoxicating liquors in place where
soft drinks are sold, in violation o1
| the prohibition law. came to an alb
rupt stop in the district court las
Monday when former District Attor-
ney II. w. Edwards. counsel for the
accused man. raised the question ol
| the legality or sufficiency of the af
| fdavit supporting the search warrant
and upon which the officers searched
the Tuck establishment on Aultmaf
street and confiscated some alleged
moonshinc liquor which was found II
the safe.
The trial of the ease was allowed
| by counsel for Tuck to proceed be
| fore the court TO a point where thf
! Jury had been selected and sworn Il
| try the issues. District Attorne,
| Charles A. Walker called Arthur
Knecht, a prominent wholesale and
retail tobaceonist. to the stand ane
as soon as the first question wa:
asked the witness Counsellor Ed
wards arose and addressing the couri
objected to any further proceeding,
being had in the matter. basing his
| objection upon the ground that tht
affidavit of the complaint upon which
| the search warrant was issued out oi
! the justice court was insufficient. ant
by any proceedings hereunder thu
constitutional rights of the defendant
was abridged. He made an able pre-
sentation CT the matter to tho court
citing numerous authorities in sup
port of his contention, and pointed tt
the fact that the same question was
| involved as that raised before Judge
McFadden in the district court a few
weeks ago in the case of the STATE
against Jim Demas, when the conr
went thoroughly into the matter and
| finding the search warrant insufficient
ordered the return of the propert,
and the dismissal of the defendant
This decision was later referred II
by the district attorney when he re
questcd the court TO dismiss the cases
I against Charles Place and the Rodri
CUES brothers.
District Attorney Walker urged
mainly the point that the objection
on the part of the defendant came toe
late and should have been made be
fore the trial He admitted that ont
4
but said the weight of authority sup
ported it. Counsellor Edwards ther
pointed out that the defndant Tuck
did not engage counsel until the eve
of the trial, and he further argued
that In numerous cases where ths
question had been taken up on appoa
after a conviction the supreme court!
OF other states invariably held tha
the constitutional rights of all citi
zens must be safeguarded and where
other courts had allowed proceedings
on insufficient search warrants the
action was reversed I'm the court ol
last resort. II was further argued
that the time for raising the question
was quite immaterial but no doubi
was raised before trial in the fedora
courts where the calendars were filled
with such cases and long list of wit
nesses were being held at considera
| BILE expense in connection with them
but in the case at bar 1t was discre
tionary with the court as To whether
or not IL would devote the time there
for consideration.
The affidavit in question was refer
red to as being identical with the one
in the Demas case. on which the eour'
had previously ruled. The law l.
simple and explicit. providing that an
affidavit on information and belief Is
not sufficient hut must come from .
positive and reliable source. describ
ing the premises to be searched and
the property to be searched for. The
| justice of the peace may require
sworn testimony to be produced be
fore him and when the search has
been made return must he made t.
the justice. with an inventory of the
property seized. where seizure has
! been made, and copy of such inyen
tory delivered to the defendant In
case of his arrest The constitutional
guaranty provides that the rights oi
F., the people to be secure in their per
sons, houses. papers and effects
against unreasonable searches or seiz-
ure cannot be violated.
! In passing upon the question Judg.
I McFadden said that the constitution
al guaranty extended to all persons
alike. and that it must be respected
in equal justice to all. whether they
be rich or poor or IF high OF lew tie
gree.
Upon the showing made as To thf
| insuffciency of the search warrant
Counsellor Edwards on behalf q.
| Tuck moved that the prosecution b.
set aside and the defendant releas ed
and the motion was granted.
/