Appeal of Mac Sales Co.

• Decision Date: 13 April 1953
• Docket Number: No. 1,Nos. 43419-43421,s. 43419-43421,1
• Citation: 256 S.W.2d 783
• Court: Missouri Supreme Court
• Parties: Appeal of MAC SALES CO. et al. Appeal of NOVELTY MFG. & SALES CO. et al. Appeal of UNITED SALES CO. et al

Page 783

256 S.W.2d 783

Appeal of MAC SALES CO. et al.

Appeal of NOVELTY MFG. & SALES CO. et al.

Appeal of UNITED SALES CO. et al.

Nos. 43419-43421.

Supreme Court of Missouri, Division No. 1.

April 13, 1953.

Morris A. Shenker, St. Louis, for appellants.

J. E. Taylor, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty., Gen., for respondent.

COIL, Commissioner.

These three cases have been consolidated on appeal. The procedure followed and issues in each are the same. We shall, therefore, sometimes refer to these appeals as though there were one case. We have concluded that we have no jurisdiction and that the cases must be transferred to a court of appeals.

Upon application by a lieutenant of the Metropolitan Police Department of St. Louis, a search warrant was issued by a judge of the circuit court pursuant to the provisions of RSMo 1949, V.A.M.S., Secs. 542.380 and 542.390. (These sections, in part, provide for seizure of obscene articles and pictures.) The warrant was executed and a return thereon made. Among the articles seized were decks of playing cards. On each card was a picture of a nude or partially nude woman. A notice of hearing as required by section 542.400 was given to the owner of the property seized. A hearing was had at which the owner appeared. The court determined that the property seized was the kind described in section 542.380, supra, and ordered it destroyed.

The jurisdiction of this court is invoked upon the sole ground that constitutional questions are involved on this appeal.

The hearing referred to was begun on June 21, 1951, at which the police lieutenant (who applied for and executed the warrant) testified. He related the circumstances of his application for, the issuance of, the execution of, and his return made on, the search warrant. He was cross-examined by the attorney for claimantowner of the property. At the conclusion of the hearing on the 27th, the attorney for claimants (present applellants) introduced in evidence the application, the search warrant, 'and all the proceedings that were had, that are a matter of court record'. Appellants' attorney also indicated that, if the court thought it necessary, he wished to offer testimony pertaining to the nature and effect of the pictures which appeared on or in the articles seized. The court indicated that he would first determine the validity of the search warrant and if he ruled adversely to claimants, he would permit the introduction of the evidence mentioned.

The next entry in the transcript shows that on November 1, 1951, further proceedings were had pursuant to adjournment on June 27, 1951. At this later or continued hearing, it was stated by appellants' counsel that the proceeding was a 'continuation of the motion to determine whether these items are obscene and lewd.' The court asked, 'This is not a motion to quash the search warrant?' Appellants' counsel replied, 'It is the motion following issuance of the search warrant.' It was then made clear by counsel that the only items which had been seized which claimants wished returned were the playing cards. Thereafter, one witness testified for claimants as to the nature and effect of the pictures appearing on the playing cards.

It further appears that on March 7, 1952, the court ordered the seized property (including the playing cards) destroyed, based upon a finding that the articles were the kind described in section 542.380, supra, and that appellants filed their respective motions for new trial. The first time any attempt was made to raise any constitutional question was in the motions for new trial.

It is established that in order to invoke the jurisdiction of this court on the ground that a constitutional question is involved, the particular constitutional question to be presented on appeal must have been raised at the earliest opportunity consonant with good pleading and orderly procedure under the circumstances of a given case. City of St. Louis v. Butler Co., 358 Mo. 1221, 1227, 219 S.W.2d 372, 376[5, 6]; Robinson v. Nick, 346 Mo. 305, 309, 134 S.W.2d 112, 114[10-12]; State v. Williams, 337 Mo. 987, 988, 87 S.W.2d 423, 424. Just when such earliest opportunity arises in a given case depends upon the facts and circumstances. Almost always, it is too late to raise the question in a motion for new trial; however, it has been held that where no opportunity arises...