The State v. Fenley

• Decision Date: 14 July 1925
• Docket Number: 23342
• Citation: 275 S.W. 36,309 Mo. 520
• Parties: THE STATE v. J. B. FENLEY, Appellant
• Court: Missouri Supreme Court

275 S.W. 36

309 Mo. 520

THE STATE v. J. B. FENLEY, Appellant

No. 23342

Supreme Court of Missouri

July 14, 1925

Appeal from Callaway Circuit Court; Hon. David H. Harris Judge.

Reversed and remanded.

Nick T Cave and Emil P. Rosenberger for appellant.

(1) The court should have sustained the defendant's motion to quash the search warrant: (a) Sec. 6595, R. S. 1919, as amended by Laws 1921, p. 413, is unconstitutional in this Said section is violative of Sections 11 and 30, Article 2, of the Constitution of Missouri, and is violative of the fourth and fifth articles and of Section 1 of Article 14 of the Constitution of the United States. Lowry v. Rainwater, 70 Mo. 152; City of St. Louis v. Mo. Pac. Ry. Co., 278 Mo. 205. (b) Section 6595, except by the stretch of a vivid imagination, makes no provisions for the issuance of a search warrant either by the clerk or court. (c) The affidavit upon which the search warrant was issued is insufficient. (2) The indictment is fatally defective: (a) Words of a statute which are descriptive of an offense as part of the statutory definition thereof cannot be omitted from an indictment or information thereunder without rendering the same defective. State v. Viviano, 206 S.W. 235; State v. Miller, 132 Mo. 297; State v. Hesseltine, 130 Mo. 468. (b) The indictment fails to follow the language of the statute. Every fact material to the offense charged must be alleged in the indictment, and nothing material can be taken by intendment or implication. State v. Hall, 130 Mo.App. 170. (c) The indictment fails to charge the sale was unlawfully made, as in required in careful criminal pleading. (3) When Mrs. Roberts failed to connect the defendant with the matters testified to by her the court should have, on defendant's motion, stricken out her testimony. (4) The testimony of the sheriff and deputy sheriff as to the number of empty Jamaica ginger bottles they found in the shed back of the Atwood Bakery while executing the search warrant was improperly admitted in evidence. (a) The search warrant under which the officers acted should have been quashed on defendant's motion. (b) The search warrant under which the search was made was void and conveyed no authority upon the officers to seize a lot of empty bottles. Intoxicating liquor was what the officers had a right to seize, if anything. (c) The result of this search and the seizure of the empty bottles and the boxes and barrels and vessels in which the same were contained, and the subsequent testimony of the officers, was in effect to compel defendant to furnish damaging and incriminating evidence against himself and defendant was deprived of his rights guaranteed to him under Article 2, Section 23, of the Constitution and of the Fifth Article of the Constitution of the United States. (d) The alleged sale of the Jamaica ginger was made January 19, 1921. The spectacular raid made by the officers under the alleged search warrant was not made until May 18, 1921, four months later than the alleged sale of Jamaica ginger in question. The raid was too remote to throw any light on the alleged sale.

Jesse W. Barrett, Attorney-General, and Wm. L. Vandeventer, Special Assistant Attorney-General, for respondent.

(1) Under the late rulings of the Supreme Court the search warrant was illegal and void. State v. Owens, 259 S.W. 100; State v. Lock, 259 S.W. 116; State v. Tunnell, 259 S.W. 128; State v. Smith, 262 S.W. 65. (2) The court did not commit error in overruling the motion to quash the search warrant. The testimony on the motion failed to show the premises belonged to appellant; in fact, the testimony showed that they did not belong to him. Objections to an illegal search warrant can only be raised by the owner or person in possession of the premises. Lakes v. Commonwealth, 254 S.W. 908; Bowling v. Commonwealth, 193 Ky. 642; Lusco v. United States, 287 F. 69; United States v. Kaplan, 286 F. 963; Jones v. United States, 296 F. 632; Chicco v. United States, 284 F. 434; Haywood v. United States, 268 F. 803. (3) The premises searched were not within the curtilage, and the constitutional provision does not apply. United States v. Kaplan, 286 F. 975; Brent v. Commonwealth, 194 Ky. 504; United States v. McBride, 287 F. 214, 284 F. 416; McClannahan v. Chaplain, 116 S. E. (Va.) 495.

OPINION

Walker, P. J.

This case was re-assigned to the writer, June 16, 1925. Its final disposition, after it had been re-assigned, was deferred to await the court's ruling in certain other cases, the issues in which were thought at the time of their submission to be the same as involved in the instant case. The final disposition of these cases renders the further delay in the determination of this case unnecessary.

The defendant was charged by indictment preferred by the grand jury of Callaway County, with the sale of intoxicating liquors to one F. M. Thompson, and upon a trial to a jury he was found guilty and his punishment assessed at a fine of three hundred and fifty dollars. From this judgment he appealed to the Kansas City Court of Appeals; and upon a motion filed by counsel for the defendant, alleging that a constitutional question had been timely raised, the case was transferred to this court.

Thompson, the prosecuting witness, testified that he had bought a case of twelve bottles of Jamaica ginger for beverage purposes from the defendant, for which he paid eight dollars; that he drank two bottles of the liquor, which was slightly intoxicating within a half hour's time. Evidence was introduced showing that Jamaica ginger contains from eighty-five to ninety-five per cent alcohol. Two of the witnesses for the State testified that defendant warned them against testifying before the grand jury; that if they didn't know what they were testifying to there might be trouble. Mrs. Roberts, whose husband had been employed by defendant, testified that six months before this charge was preferred against the defendant she and her husband went to St. Louis and while there bought a cause of Jamaica ginger. The night of their return to Fulton they took the ginger into defendant's store and the latter helped her husband carry it in. That she was the person who had been warned by the defendant not to testify before the grand jury.

When the grand jury had the matter here in issue under consideration the prosecuting attorney made application to the circuit clerk for a warrant authorizing a search for intoxicating liquors in a woodshed belonging to the Attwood Bakery Company in Fulton. This warrant was issued by the clerk, and a search of the premises disclosed that a large number of Jamaica ginger bottles were stored therein. The shed in which they were found was across the street from defendant's place of business and in the rear of the bakery. The prosecuting attorney in making affidavit for the warrant stated that he believed that the defendant or some other person had stored intoxicating liquors in the shed. When the bottles were being taken possession of by the sheriff defendant admitted that they belonged to him and that he had bought many of them from boys who brought them to his store to sell. Other than the assertion of ownership of the empty bottles defendant made no claim to any control over the premises, nor was there any proof to that effect. Defendant did not testify. A druggist who testified in his behalf, gave the component parts of Jamaica ginger and stated the purposes for which it was used. Several witnesses stated that they had at different times seen boys carrying empty bottles to defendant's store.

I. The defendant complains of the overruling of his motion to quash the indictment in that it failed to aver that the Jamaica ginger charged to have been sold by the defendant contained one-half of one per cent alcohol by volume and that it was fit for use for beverage purposes. The charge of the indictment is that J. B. Fenley did then and there sell, to-wit, twelve bottles of Jamaica ginger that contained one-half of one per cent of alcohol to F. M. Thompson for beverage purposes. The section under which this indictment was drawn reads as follows: "It shall be unlawful for any person, firm, association or corporation, his, its or their agents or employees, to manufacture, sell, give away or transport intoxicating liquors within, import the same into, or export the same from, the State of Missouri for beverage purposes, except as hereinafter provided." [Sec. 6588, R. S. 1919.]

Intoxicating liquor is thus defined by the statute:

"The phrases, 'intoxicating liquor' or 'intoxicating liquors,' whenever used in this article, shall be construed to mean and include any distilled, malt, spirituous, vinous, fermented or alcoholic liquor, all alcoholic liquids, whether proprietary, patented or not, which contain one-half of one per centum of alcohol by volume and which are potable or capable of being used as a beverage; provided, however, that when the above mentioned phrases, 'intoxicating liquor' or 'intoxicating liquors' are hereafter defined in the laws of the United States, then such definition by Congress shall supersede and take the place of the definitions of said phrases in this section and shall apply to the provisions of this article with the same force and effect as if the same were written herein." [Sec. 6602, R. S. 1919.]

The indictment omits the words "by volume" and the phrase "which are potable or capable of being used as a beverage." It also omits the words "which are fit to use for beverage purposes." This latter phrase is contained in the statute designated as the Volstead Law.

It is the contention of the defendant that the Volstead Law upon its adoption superseded Section 6602, supra, and that the omission of the words "by volume" and the words...