State v. Watson

• Decision Date: 31 December 1927
• Docket Number: 28280
• Parties: STATE v. WATSON
• Court: Missouri Supreme Court

1 S.W.2d 837

STATE v. WATSON

No. 28280

Supreme Court of Missouri, Second Division

December 31, 1927

J. R Palmer, of Elsberry, and Creech & Penn, of Troy, for appellant.

North T. Gentry, Atty. Gen., and Walter E. Sloat, Sp. Asst. Atty Gen., for the State.

OPINION

DAVIS C.

The indictment returned by the grand jury of Lincoln county charged defendant with possession of about one-half pint of intoxicating liquor. The petit jury found defendant guilty as charged in the indictment, and assessed his punishment at a fine of $ 300 and 60 days' imprisonment in the county jail; defendant appealing from the judgment entered thereon.

The only testimony offered was that in behalf of the state, and it is capable of being briefly stated. On July 25, 1925, the prosecuting attorney of Lincoln county presented a verified application for a search warrant to the circuit judge, which stated that on certain premises, adequately described, in Lincoln county, intoxicating liquor is being unlawfully manufactured, sold, stored, and kept. Thereupon the circuit judge, upon a finding of probable cause, issued a search warrant directed to the sheriff of Lincoln county commanding him to search the described premises, which was accordingly done on July 25, 1925, as shown by the return of the sheriff to the warrant, and which return further shows that he there found about one-fifth of a pint of whisky. The evidence warrants a finding that on July 25, 1925, in pursuance to a search made by virtue of a search warrant, the sheriff entered the dwelling house of defendant, who was then intoxicated, read the search warrant, and there found beside the chair in which defendant was then sitting about one-fifth of a pint of white whisky in a bottle, and in the cupboard a small quantity of whisky also within a bottle. Such other facts as are pertinent will be later set forth.

I. Defendant complains of the giving of instruction 1 and of the court's refusal to give instruction A offered by him, on the ground that section 22, p. 243, Laws 1923, is unconstitutional, because the title of the act (Laws 1923, p. 236) fails to refer to a change of penalty for possession of intoxicating liquors, and fails to refer to the repeal or amendment of section 6604, Revised Statutes 1919, or to the enactment of a new section in lieu thereof. Instruction 1 authorized the jury to fix the punishment as prescribed in section 22, p. 243, Laws 1923. Instruction A was predicated on the punishment prescribed in section 6604, Revised Statutes 1919. A reference to the title of the act found on page 236, Laws 1923, discloses that the purpose of the act was to provide and prescribe penalties for violation of this act, and all other laws of this state pertaining to the manufacture, possession, transportation, sale, and disposition of intoxicating liquors. It is therefore clear that the title expressly referred to such change of penalties for the unlawful possession of intoxicating liquors as the Legislature saw fit to prescribe.

Defendant argues that section 6604, Revised Statutes 1919, is still in force, averring that it was not expressly repealed by section 29, p. 247, Laws 1923, or impliedly repealed by section 22, p. 243, Laws 1923, because the title to the intoxicating liquor act (Laws 1923, p. 236) failed to refer to a change of penalty for possession of intoxicating liquor or to the repeal or amendment of said section 6604 as section 28, art. 4, of the Missouri Constitution requires. But it is evident that the title to the act comprehends the prescribing of penalties for the violation of the act and all other laws of this state pertaining to the possession of intoxicating liquors; thus bringing within its scope the legislative right to enact a section of the statute which expressly repeals section 6604 as does section 29, p. 247, Laws 1923, or which impliedly repeals it as does section 22, p. 243, Laws 1923. State v. Mitts (Mo. Sup.) 289 S.W. 935. We are unable to agree that either State v. McEniry, 269 Mo. 228, 190 S.W. 272, or State v. Fulks, 207 Mo. 26, 105 S.W. 733, 15 L. R. A. (N. S.) 430, 13 Ann. Cas. 732, present an analogous situation.

II. It is asserted that the search warrant contravenes the provisions of section 11, art. 2, of our Constitution, commonly known as the search and seizure clause. The sufficiency of the search warrant is attacked for various reasons. It is said, first, no record was made of the issuance of a search warrant; second, no return of the search warrant was made to the circuit court or the judge; third, the application for the search warrant was not filed in the circuit court; fourth, the command of the search warrant to arrest defendant was not obeyed; fifth, the application for the search warrant did not state any facts from which probable cause could be judicially determined; sixth, the application for the search warrant stated a mere conclusion of the prosecuting attorney, and the finding of probable cause was delegated to the prosecuting attorney, a nonjudicial officer; seventh, the search warrant recites that, on a petition and a showing thereby and therein, probable cause was found to exist, resulting that such showing was erroneously considered by the judge because it was not reduced to writing.

This court has heretofore considered and determined the propositions urged adversely to defendant. We have held that the first four specifications as set forth above charge failure on the part of the officers to appropriately perform ministerial duties. In State v. Coleman, 302 Mo. 646, 259 S.W. 431, Walker J., in discussing the effect of the nonperformance by an officer of ministerial duties, has the following to say:

'This indorsement, made by the judge of the court having complete jurisdiction of the matter in controversy, imports verity. Its integrity cannot be questioned by showing an absence of a record entry by the clerk during vacation of the making of the affidavit and the filing of the same as an application for the warrant. Nor is a like failure on the part of the clerk to note on the record, in conformity with orderly procedure, the order of the judge directing the issuance of the warrant. It is not the contention of the appellant that the judge of the court was not authorized to make this order, but that it conferred no power upon the officer to whom it was directed, in the absence of an order of the court to that effect entered of record. While experience has demonstrated that constant judicial supervision is necessary to the proper discharge of their duties by ministerial officers, a dereliction of duty, in that regard, properly classed as a misprison, cannot be invoked, in the absence of any countervailing reason, to assail the integrity of the court's action.'

As to the last three specifications we have lately held in State v. Boyer, 300 S.W. 826 (not yet [officially] reported), and State v. Naething, 300 S.W. 829 (not yet [officially] reported), that an application for a search warrant filed by the prosecuting attorney properly and adequately set forth facts from which the judicial officer could judicially determine probable cause, which application stated boldly, upon the official oath of the officer, that intoxicating liquors were, upon certain described premises, being unlawfully manufactured, sold, stored, and kept. In conformity with the latest rulings of this court, the integrity and sufficiency of the application and the search warrant must be sustained.

III. Defendant charges error on the part of the court in refusing to sufficiently reprimand the prosecuting attorney and in refusing to declare a mistrial and to discharge the jury because of the comment made by the prosecuting attorney during the argument and the remarks of the court, reading:

'Mr. Huston: There was present there on the afternoon of the 25th day of July, 1925, besides the defendant, Earnest Davis, Forest Buchanan, 17 year old boy, and Watson's daughter, and Watson's wife, who didn't testify-

'Mr. Penn: We want to make the objection to the prosecuting attorney referring to the fact that the defendant and other witnesses didn't testify.

'The Court: I didn't understand the attorney.

'Mr. Huston: My statement is this: There was present there on the afternoon of the 25th of July, 1925, besides the defendant, Earnest Davis, Forest Buchanan, 17 year old boy, Watson's daughter, and Watson's wife, I think the testimony goes further-

'Mr Penn: He has no more right to comment on the wife than he has on the defendant or indirectly, but his other statement included the...