Squires v. State

• Decision Date: 16 January 1975
• Citation: 525 S.W.2d 686
• Parties: Stephen L. SQUIRES, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 686

525 S.W.2d 686

Stephen L. SQUIRES, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Jan. 16, 1975 Certiorari Denied by Supreme Court June 9, 1975.

Burkett C. McInturff and John S. McLellan, Kingsport, for plaintiff-in-error.

Milton P. Rice, Atty. Gen., John B. Hagler, Jr., Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Kingsport, for defendant-in-error.

OPINION

OLIVER, Judge.

Represented by retained counsel, Stephen L. Squires has perfected an appeal in the nature of a writ of error to this Court contesting his conviction of professional gambling, for which he was sentenced to pay a fine of $1,000 and to be imprisoned in the penitentiary for not less than one nor more than five years. TCA §§ 39--2032 and 39--2033.

The presentment upon which the defendant was tried was returned by the Grand Jury on 16 March 1973. By his first Assignment of Error the defendant complains that the trial judge overruled his motion to quash the presentment upon various grounds, including such indefiniteness, uncertainty and ambiguity that it did not furnish him with sufficient information to enable him to defend himself properly and would not protect him against double jeopardy; and also in overruling his motion to dismiss the presentment upon the ground that the statutes under which it was laid were unconstitutional because of vagueness, indefiniteness and uncertainty.

To begin with, we do not agree that either the presentment or the statutes upon which it is based show infection with any such constitutional infirmity.

But beyond that, in making these contentions here the defendant confronts the fact that no order overruling those motions was made and entered upon the court's Minutes. Notwithstanding it appears in the Bill of Exceptions that the court overruled those motions, no order reflecting that section is shown to have been made and entered of record. When the Minutes of the trial court contain no entry showing any action upon a plea in abatement or a motion to quash an indictment, the established law of this State is that the appellate court cannot review the question raised by such plea or motion and is not permitted to look to recitals in the Bill of Exceptions to supply this defect. Klaver v. State (Tenn.Cr.App.1973), 503 S.W.2d 946; Shye v. State (Tenn.Cr.App.1974), 506 S.W.2d 169; Jones v. State, 197 Tenn. 667, 277 S.W.2d 371; Gray v. State, 194 Tenn. 234, 241--242, 250 S.W.2d 86.

The defendant's second Assignment, which we hold to be without merit, advances and argues his insistence that the trial court erroneously overruled his challenges to the legality of four search warrants and erred in admitting in evidence the seized gambling devices and equipment and component parts.

The first search warrant was issued January 5, 1973 as a 'John Doe, alias' warrant (which term did not affect the legality of the warrant, Garner v. State, 220 Tenn. 680, 423 S.W.2d 480; Renner v. State,187 Tenn. 647, 216 S.W.2d 345) and directed search of the two-compartment basement of the B & B Package Store in Kingsport, Tennessee. In March of 1973 the package store owner leased the basement to the Duran Corporation, whose offices were in the same building and which was a landholding company organized by the defendant and Herbert Patterson and Lester Peters for the purpose of establishing restaurants. Contrary to the defendant's insistence, the description of the premises contained in this search warrant was not defective or inadequate. The simple test of the legal sufficiency of a search warrant's description of the property to be searched is whether or not it will enable an officer to locate the place to be searched with reasonable certainty, Hatchett v. State, 208 Tenn. 399, 346 S.W.2d 258, and thus prevent the officer from searching the premises of one person under a warrant directed against those of another. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351.

And he was not prejudiced by not being permitted to call and examine the affiant's informant (Lieutenant Sammy Poole of the Sullivan County Sheriff's Department whose name appeared in the affidavit) regarding his statement to the affiant, which was also set out in the affidavit. The facts stated in the affidavit upon which the affiant bases his reasonable belief are not subject to contradiction at the trial for the purpose of suppressing the evidence secured by means of the search warrant. Owens v. State, 217 Tenn. 544, 553, 399 S.W.2d 507. In determining whether or not probable cause exists for the issuance of a search warrant, the issuing magistrate performs a judicial act which is not subject to review by the Court if probable cause is shown on the face of the warrant. O'Brien v. State, 205 Tenn. 405, 326 S.W.2d 759; Poole v. State, 4 Tenn.Cr.App. 41, 467 S.W.2d 826. Besides, he substantially accomplished the same purpose by cross-examination of Officer Poole.

The complaint with reference to this presentment that T.C.A. § 40--518 was not complied with is untenable because the record shows that the defendant was not present when the premises were searched and there is no evidence that either of the other incorporators or any employee was there at that time. Poole v. State, supra; State v. Calvert, 219 Tenn. 534, 410 S.W.2d 907.

We must reject the defendant's argument that the search was illegal because the basement was divided into two compartments by a partition which contained a closed and locked door and each compartment had a separate exterior entrance, and that the search warrant left it to the discretion of the officer executing it which of the separate premises he would search. Patterson testified that the partition was installed after the Duran Corporation leased the basement, that the Corporation stored some three truck loads of restaurant materials there and the defendant stored some machine parts in the basement. Under these circumstances the two compartments of the basement did not constitute multiple premises within the meaning of Worden v. State, 197 Tenn. 340, 273 S.W.2d 139. Nor was the search invalid because the warrant charged possession of one electric slot machine and the officers found one such machine in one compartment of the basement and 39 such machines and assorted repair parts and tools in the other.

The defendant assails a search warrant issued to Officer Sammy Poole on 19 January 1973, which directed search of Franklin Shipley's business house known as Bloomingdale Billiards located at a designated street number, for electronic gambling devices, the affidavit reciting that the affiant's belief was based upon information received from Franklin Shipley himself. We cannot agree with the defendant's assertion that this warrant's description of the premises to be searched was fatally uncertain and inadequate. Nor can we assent to the proposition that the defendant was denied his constitutional right to a fair and impartial trial when an FBI agent, who was an expert in gambling machines and devices, demonstrated the operation of one of the confiscated machines. We do not perceive how this demonstration of the machine with 'lights flashing' and 'bells whistling' and other 'bizarre noises' coming therefrom created a 'casino atmosphere' in the courtroom so as to prejudice the defendant's right to a fair trial.

Another search warrant attacked by the defendant is the one issued on 8 January 1973 upon the affidavit of Deputy Sheriff Mike Gardner, based upon his own personal observation of the premises in question on the same day, directing search for gambling devices in a house and outbuildings belonging to the defendant and one Ted Frazier described as being located on the east side of U.S. Highway 23 at its intersection with the Old Airport Road and directly across U.S. Highway 23 from a business house known as Cottage Antiques. We must reject the defendant's contentions that this warrant does not show probable cause for its issuance and that its description of the premises to be searched is fatally inadequate and vague and uncertain, and that it failed to show on its face that the issuing General Sessions Judge complied with T.C.A. § 40--518 by retaining a copy for his official records. That statute provides as follows:

'Copies of search warrants required--Indorsement--Evidence.--All magistrates, clerks of courts, judges and any other person or persons whomsoever issuing search warrants shall prepare an original and two (2) exact copies of same, one (1) of which shall be kept by him as a part of his official records, and one (1) of which shall be left with the person or persons on whom said warrant is served. The original search warrants shall be served and returned as provided by law. The person or persons as aforesaid who issue said warrants shall indorse the warrants showing the hour, date, and the name of the officer to whom the warrants were delivered for execution, and the exact copy of such warrant and the indorsement thereon, shall be admissible in evidence in the courts. Failure to comply with this section shall make any search conducted under said warrant an illegal search and seizure.'

The General Sessions Judge who issued this search warrant placed this endorsement on it:

'Issued in triplicate at 11:55 p.m. this 8th day of January, 1973 and delivered to Mike Gardner on this 8th day of January, 1973 at 11:55 o'clock p.m. for execution.

George H. Garrett

Judge of General

Sessions Court'

We agree with the State that while this statute requires the issuing magistrate to retain a copy of the search warrant, it does not require that compliance must be recorded on the warrant itself--however desirable it may be to do so. It will be noted that T.C.A. § 40--518 only requires the issuing official to endorse on the search warrant 'the hour, date, and the name of the officer to whom the warrants were delivered for execution.' Talley v. State, 208 Tenn. 275, ...