State v. Allen
| Decision Date | 10 May 1923 |
| Docket Number | No. 3342.,3342. |
| Parties | STATE v. ALLEN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.
Harry Allen was convicted of unlawfully having intoxicating liquor in his possession, and appeals. Affirmed.
See, also, 246 S. W. 925.
Roy Coyne, of Joplin, and W. R. Shuck, of Webb City, for appellant.
C. S. Walden, Pros. Atty., of Joplin, for the State.
The defendant in this case was convicted on the charge of unlawfully having in his possession intoxicating liquor, said intoxicating liquor so possessed containing more than one-half of 1 per cent. alcohol, and that said possession was prohibited and contrary to the law and the statutes of the state of Missouri. The information contained three other counts charging other offenses under the Prohibition Law, but the trial court directed a verdict in defendant's favor on all except the charge above set out.
The record before us shows that the prosecuting attorney of Jasper county made an affidavit that in the building where defendant was staying intoxicating liquors were being kept, contrary to the provision of the statute of Missouri, and that a part of the building was used as a shop and for purposes other than a private dwelling, and was used as a place of public resort. The circuit clerk issued a search warrant, which was placed in the hands of a deputy sheriff, who, with two police officers, went to serve the warrant. They met the defendant, who, they testified, told them, after being informed that they had a search warrant, to go ahead and search all they wanted to, and it would be all right "white mule" whisky, which was shown to contain about 33 per cent. alcohol.
The defendant did not testify, and the only move made by him during the trial was to file a motion to quash the search warrant: First, because it was unconstitutional; second, because it did not set out the kind of liquor, or the kinds, to be searched for; and, further, that it did not specificially set out the place to be searched. This motion was overruled by the court, and no exception was saved to the ruling.
The cause was first appealed to the Supreme Court of Missouri, which court, in an opinion, held that no constitutional question was before it, owing to the fact that no exception was saved to the overruling of the motion asking that the search warrant be quashed. For the same reason no question concerning the search warrant is before us. It is...
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...seizure was infringed--a question which we need not and do not rule [but, see State v. Lee, Mo., 11 S.W.2d 1044, 1045(4); State v. Allen, Mo.App., 251 S.W. 69(2); 47 Am.Jur., Searches and Seizures, Sec. 71, p. 547]--such violation of Cagle's constitutional rights would be of no legal concer......
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