Barbini

This matter arises on motion to suppress evidence, it being contended by the defendants that the search warrant issued in this matter was a day or nighttime search warrant and was issued without probable cause. The contention is that the affidavit upon which the warrant was based is insufficient.

The law requires a positive assertion as to the presence of intoxicating liquor within the premises to be searched. Espionage Act, 40 U. S. Stat. at Large, 228, tit. 11, § 10 (U. S. Compiled Stat. 1918, 1919, Supp. p. 2396 [18 USCA § 620]), provides:

“The judge or commissioner must insert a direction in the warrant that it be served in the daytime, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served at any time of the day or night.”

The affidavit in the search warrant under consideration meets this requirement by the following clause:

“That in and upon the aforesaid premises and place and on or about the 18th day of March, 1928, intoxicating liquor as defined by section 1 of title 11 of the Act of October 28, 1919, known as the National Prohibition Act, containing one-half of…