Zukowski v. State

Urner, J., delivered the opinion of the Court. In the indictment upon which the appellant was tried and convicted it was charged that, being a class D licensee for the sale of alcoholic beverages at retail, on the premises known as 2304 Boston Street, in Baltimore City, for consumption on the premises and elsewhere, he “unlawfully did have in his possession, and permit to be kept upon the aforesaid premises * * * certain distilled spirits and liquors and other alcoholic beverages containing more than fourteen percentum of alcohol, upon which said distilled spirits and liquors and other alcoholic beverages the tax as prescribed by law had not theretofore been paid. * * *” A demurrer to the indictment was overruled. Before the trial on the facts, a motion was made by the defendant to suppress the use, as evidence, of a, quantity of alcoholic liquor which he claimed to have been discovered and taken by an illegal search and seizure. The action of the trial court in overruling that motion was the principal subject of the argument on appeal.

There was no error in either of the rulings under review. The theory of the demurrer was that the indictment failed to state that the liquor mentioned in it was found on the licensed premises or was subject to tax. This contention reflected the defense, interposed at the trial, that the liquor in question was kept in a part of the defendant’s building not included in the licensed portion of the premises, and was not taxable because the defendant acquired it before the repeal of the Eighteenth Amend ⁵⁵² ment. It was charged in the indictment, however, that the liquor was in fact kept on the licensed premises, and that the tax upon it prescribed by law had not been paid.

Possession and taxability were sufficiently alleged for the purposes of an indictment under section 40, chapter 2, of the Acts of Assembly, passed at the Extraordinary Session in 1933, which contains the provision that “every retail dealer and every employee of any such retail dealer who shall have in his possession, sell or offer for sale, or permit to be kept upon the premises, any alcoholic beverages subject to the tax imposed by this Act, upon which the tax has not been paid, * * * shall, upon conviction, be subject to” a fine or imprisonment, or both, as therein prescribed. The defense that the liquor described in the indictment was not taxable, because of its acquisition by the defendant before the repeal of the Eighteenth Amendment, needs no discussion in view of the decision, adverse to such a defense, in Abramson v. State, 167 Md. 531 , 175 A. 593 , at the present term. At the hearing on the motion disputing the legality of the search and seizure to which we have referred, it was testified by Sergeant Williams that, accompanied by other officers, he went to the defendant Zukowski’s premises and found him behind the bar. The sergeant’s testimony then proceeded as follows: “When I entered the premises I notified Mr. Zukowski that we were from the police department and that we had information they were violating the Liquor Law. * * * I then asked him if he occupied all of the premises.

He stated he did. He told me he didn’t have any liquor, untaxed, on the premises. I went back of the bar and searched and then to the dining room and then on to the kitchen. Mr. Zukowski all that time was with me; and I went upstairs and Mr. Zukowski was with me and searched the second floor.

I then went to the third floor and had found nothing. Coming down the steps, I stepped on a tread apparently loose. When I got down to the second floor I looked around to make an investigation. I saw a bolt that dropped down into the ⁵⁵³ riser.

I removed that bolt and pulled the tread out and found five gallon jugs of whiskey.” On objection, the word “liquor” was substituted for “whiskey,” but the liquor was later proved to have an alcoholic content of 47 per cent, by volume and to be fit for use as a beverage. It was further testified by Sergeant Williams that there were no tax stamps on the jugs which he discovered, that he seized the liquor and removed it to the police station, and then took samples of it to the bureau of standards for analysis. The defendant’s testimony in chief was simply to the effect that he had a bar and tavern at 2304 Boston Street, and lived in the house with his family,, occupying as a home the part of the building back of the bar, and that he bought the seized liquor before the repeal of the Eighteenth Amendment. On cross-examination he admitted that the liquor belonged to him, that no state tax had been paid on it, that he was the owner of the building in which the bar was located, and that when he applied for the license he signed a statement assenting to the search of the premises.

This was required by section 5 of the act already cited, which provided that every application for a license authorized by the act shall contain “a statement duly executed and acknowledged by the owner of the premises in which the business is to be conducted assenting to the granting of the license applied for, and authorizing the Comptroller, his