The opinion
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Anderson, J.,
delivered a dissenting opinion.
At a former day of the present term of this court, the judgment of conviction in this case was affirmed without an opinion. I concurred with the other members of the court in the affirmance. It is now back before the court on suggestion of error.
After thorough reconsideration of the case, I have reached the conclusion that the court erred in affirming the judgment. The affidavit and search warrant described the property to be searched as appellant’s home, outhouses, barns, yard, garden, field, woods, etc., near his residence located on ‘ ‘ Section 22, Township 4, Range 14 in said County. ’ ’ The evidence showed that the liquor found by the search was located on Section 23, instead of Section 22, Township 4, Range 14 in Clarke County, and approximately 300 feet from appellant’s property, but that there was a beaten path from appellant’s home to where the liquor was found; that the find was on property owned by Mrs. Cross. The evidence was sufficient to show that the liquor found belonged to appellant and he was using the place where found, and probably had been using it for sometime, as a hide-out for his liquor. Mr. Cross, the husband of Mrs. Cross, testified that the land where the liquor was found belonged to his wife. He was not asked and did not state whether appellant’s use of the place was with the consent of himself or his wife or not; however, in my opinion that was immaterial because the evidence 'showed beyond any doubt that the place was a part of the premises where appellant carried on his illegal business.
The question is whether or not under Section 23 of our Constitution and statutes the state had the right to search the premises where the illegal business was being carried on in whole or in part without a search warrant, where the defendant has neither the title to the property nor right of possession as against the true owner. Clearly it seems to me that question ought to be answered in the
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negative. The contrary view means that in many cases there would be involved the trial as to the true ownership of the property. In other words, if the defendant is neither the true owner of the property nor has the right of possession from the true owner and is nevertheless carrying on his illicit business on it, the state has a right to search the place without a search warrant. The state is not concerned with the title to the property; it is the unlawful business conducted on the property. Take this kind of a case, John Smith goes on a piece of land to which he has neither title nor right of possession; he establishes on it a distillery consisting of the necessary buildings and machinery costing many thousands of dollars; he conducts the illicit distilling business there for years. All the while the owner of the land is objecting to it and finally brings suit to put him off of the place. While the suit is pending the state has his premises searched without a search warrant. According to the majority opinion that could be legally done. Take the case in hand, suppose Mrs. Cross knew that appellant was using her land in whole or in part to carry on his business and objected to it and denied his right to do so, and ordered him off of the place, which order he refused to obey, and he knew Mrs. Cross was right in her contention, could the place.be searched without a search warrant? I think clearly not. The state has nothing to do with the title to the property; it is the possession, whether lawful or unlawful, that concerns the state. To hold otherwise would mean that many cases of this character would result in largely a trial of the title to the property. The title to the property has nothing to do with the matter, it is the possession, whether rightfully or wrongfully.
I know of no decisions of our court directly in point on this question; if there are, however, they ought to be overruled.