Kohler

Kohler, defendant below, was convicted of unlawful possession of intoxicating liquor, and by due procedure on writ of error presents the question of the validity of a search warrant issued on August 20, 1924, and the admissibility of personal property-taken and seized thereunder.

The material recitals of the search warrant are that, whereas, William R. Donnelly, a prohibition agent, Was on the 29th day of September, 1924, duly sworn and examined under oath, and made affidavit, which is made part of the warrant; and “whereas, from the said examination and facts set out in said affidavit, I, B. J. Dillon, being there-* upon and therefrom satisfied of the existence of the grounds of the application, and that there is probable cause to. believe that the grounds of and upon which the application is based do exist: I find that there is probable cause for the issuance of this warrant; that the particular ground and probable cause for the issuance of this search warrant are the facts and circumstances set out in the affidavit of William R. Donnelly, hereto attached and made a part hereof, as hereinbefore set out.”

The'affidavit of Donnelly, dated September 29, 1924, after setting up…

(dissenting).

I confess my inability to follow the reasoning of the majority of the court in reaching the conclusion that, because in the search warrant the commissioner made express mention of but one of tho affidavits which were before him when he issued the same, and because he was not called as a witness to testify that he did in fact consider all the affidavits, the judgment must be reversed. It is not disputed that the affidavits, if all were considered, were sufficient. The fact that but one affidavit was referred to in the warrant is explainable on the ground that the commissioner must have deemed it unnecessary to mention the others. But they were all before him, and the presumption should follow that he considered them all.

In addition to that presumption, there was actual and sufficient proof that he did consider them all. Certainly it cannot be said that no competent proof that he did consider them all could have been furnished, *26 otherwise than by his own testimony.. Obviously circumstances might arise, to prevent the production of such testimony. All the necessary proof was furnished by the testimony of the prohibition agent, who stood by and observed the fact…