Collins v. Lean

Foote, C. — This is a controversy submitted without action, under section 1138, Code of Civil Procedure, and from the judgment therein rendered, which was in favor of the defendant, an appeal is prosecuted under section 1140, Code of Civil Procedure.

It appears from the agreed statement of facts that, on the third day of April, 1885, Collins, the plaintiff, was a merchant, residing and doing business as such in the city and county of San Francisco, and the defendant a [286]duly appointed, qualified, and acting police officer of said city and county.

That B. Burke was then and there a duly elected, qualified, and acting justice of the peace in and for said city and county.

That on the day above mentioned, the defendant, acting upon the information which he had received from one Handly, that the plaintiff had sold him (Handly) a lottery ticket on that day, in said city and county, and was then and there engaged in the business of selling lottery tickets to divers persons, applied to E. Burke, as justice of the peace aforesaid, for a search-warrant, to be used for the purpose of searching the plaintiff’s person; that the deposition which he then and there made in due form and filed with said justice contained inter alla this statement: “That on the third day of April, A. D. 1885, at said city and county, certain tickets in the Louisiana State Lottery were upon the person and in the possession of plaintiff, with the intent to use the same as the means of committing a public offense, viz., selling them for money”; and prayed for a warrant to search for the same.

That on such making and filing of said deposition, E. Burke, as justice of the peace aforesaid, issued under his hand a search-warrant, in due form of law, directed (among others) to any policeman of said city and county, requiring them to make immediate search of the plaintiff’s person for such lottery tickets, and if any such were found, to bring them before him.

That on the same day upon which said warrant was delivered to him, with instructions to serve the same, and subsequent to such delivery and instructions, the defendant did search the person of the plaintiff, but failed to find any lottery tickets. But that, after such searching, and before he left the room or place where such search was made, he discovered a package of one hundred such tickets, all of which were the property of and [287]