State v. Fenley

• Decision Date: 14 July 1925
• Docket Number: No. 24194.,24194.
• Parties: STATE v. FENLEY (two cases).
• Court: Missouri Supreme Court

275 S.W. 41

STATE v. FENLEY (two cases).

No. 24194.

Supreme Court of Missouri, Division No. 2.

July 14, 1925.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

J. B. Fenley was convicted of transporting intoxicating liquors, and he appeals. Reversed and remanded.

Nick T. Cave, of Fulton, and Emil P. Rosenberger, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Wm. L. Vandeventer, Sp. Asst. Atty. Gen., for the State.

WALKER, P. J.

The defendant was indicted by the grand jury of Gallaway county at the May term, 1921, of the circuit court for transporting intoxicating liquor, viz., Jamaica ginger. On May 18, 1921, the prosecuting attorney made affidavit for a search warrant, alleging he believed that in a woodshed back of the Attwood Bakery in Fulton a quantity of intoxicating liquors had been stored on May 14, 1921, by one J. B. Fenley, whom, the affiant believes, has been unlawfully selling intoxicating liquors. Upon this affidavit the clerk of the circuit court issued a search warrant, which, after setting forth the material portions of the affidavit as to the place to be searched, its ownership and the belief that the defendant had intoxicating liquor stored therein, directed the sheriff to search the same and produce the liquors found before the judge of the circuit court. Tried to a jury, the defendant was convicted and fined $150, from which judgment he appeals.

The defendant filed a motion to quash the search warrant for the reason that it violated the Constitution of the United States and that of the state of Missouri, especially sections 11 and 30 of article 2 of the latter, and asked that the testimony procured thereby be suppressed. Evidence was introduced on the motion showing that no record had been made of the filing of the application for the search warrant, and that the same had been issued by the clerk of the circuit court. The sheriff testified that he searched the woodshed described in the search warrant; that the store of the defendant is not situated on the same lot or block with the Attwood Bakery, but is across the street; that upon searching the woodshed he found several boxes and barrels of empty Jamaica ginger bottles; that he brought the bottles before the grand jury and that he didn't know under whose control the shed was. This was all the testimony on the motion except that the indictment and the motion to quash were introduced in evidence.

The evidence for the state tended to show that Walter Roberts was working for appellant in his grocery store in Fulton; that during Christmas week, 1920, Roberts, his wife and two others, went to St. Louis to do some Christmas shopping; that appellant asked Roberts to go to the O'Keefe grocery in St. Louis and get a package for him; that the next morning after they reached St. Louis Roberts went to the O'Keefe grocery and got the package which was a large paper box, open at the top, and in which were several sealed cartons bearing the label "Sunday Girl Jamaica Ginger." This package was brought to Fulton by Roberts and delivered to appellant at about 11 o'clock Monday night. No witness testified as to the contents of the cartons save as indicated by the labels.

Mrs. Roberts testified that a short time before the grand jury met in May, the appellant came to her and told her he had come to put a bug in her ear, that: "People who went before the grand jury and didn't know what to say were a blowed up cookie." She also testified that the label on the cartons stated that the contents were 90 per cent. alcohol.

The state offered Fletcher Thompson as a witness, who testified that some time during the preceding winter (1920) he bought a carton of Jamaica ginger from appellant for which he gave him $8. He did not remember the brand of Jamaica ginger and did not tell Fenley what he wanted with it. Witness testified that he bought it to drink and did drink it; that on or about that time Jamaica ginger was used in that community as a beverage. The check with which witness paid for the Jamaica ginger was offered in evidence. On cross-examination, witness testified that he went to appellant's place of business with a man named Harry Reid; that the latter went in and had a talk with Fenley before the transaction; that there was not any name or label on the carton; that he didn't know what amount of alcohol it contained but that it had an effect on him different to alcohol and whisky. It would merely burn him and that was all the effect it had except it gave him a sleepy feeling.

A boy, named Fletcher, who had been employed by the defendant as a truck driver, testifying for the state, said that he had helped move a barrel and two or three boxes of empty Jamaica ginger bottles from defendant's store to the shed back of Attwood's Bakery, owned and controlled by the defendant; that defendant was in the store at the time, and that the bottles were sitting at the head of the stairs; that the defendant had been in the habit of buying bottles of all descriptions from boys; that the bottles in question were moved across the main street in broad daylight just before noon.

Bishop, the sheriff, testified that under the search warrant he searched the woodsbed described therein and found the bottles which were taken by him and later presented to the grand jury; that he did not know who owned the shed; that the defendant was not present at the time the search was made but came later when they were hauling the bottles away.

Maddox, a deputy sheriff, testified that he went with the sheriff to search the woodshed and that after the search was made and the sheriff had gone to get a truck to haul the bottles away, defendant appeared and told them that he had bought some of the bottles seized, put new labels on them and refilled them himself.

Pollard, a registered druggist, testified that the commercial commodity known as Jamaica ginger contained from 65 to 95 per cent. of alcohol, depending on the manufacture, but on cross-examination admitted that he did not know anything about the special brand of Jamaica ginger known as "Sunday Girl," and that he had never heard of it.

The indictment is as follows:

"The grand jurors for the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of the county of Callaway, and state aforesaid, upon their oath present and charge that J. B. Fenley on or about the 20th day of December, 1920, at the county of Callaway and state of Missouri, did then and there transport intoxicating liquors by and through his agent Walter Roberts, to wit: One gross of two ounce bottles, containing Jamaica ginger, the said ginger containing more than one-half of 1 per cent. alcohol, from St. Louis, Mo., to Fulton, Mo., for beverage purposes which act was then and there unlawful; by the laws of the state of Missouri in such cases made and provided; against the peace and dignity of the state."

The offense charged is a misdemeanor. The jurisdiction of this court is due to the defensive interposition of a constitutional question.

I. The defendant was charged in another proceeding with having sold intoxicating liquors. The material portions of the testimony in that and the instant case are the same. In the other proceeding it was sought, in addition to the introduction of evidence to prove a sale, to supplement or add thereto by the offering and admission of testimony of the finding by the sheriff, under the authority of a search warrant, of a large number of empty bottles—not on the premises of the defendant—but which property while being removed was claimed by him. Also by the offering and admission in evidence of the transportation from St. Louis of some cartons labeled "Jamaica Ginger" to the defendant's place of business in Fulton. In the instant case, after showing the fact last stated, the testimony introduced in the other case was likewise admitted in this. This manner of proving the commission by a defendant of two or more offenses of a...