State v. Bailey
| Decision Date | 25 May 1928 |
| Docket Number | 28367 |
| Citation | 8 S.W.2d 57,320 Mo. 271 |
| Parties | The State v. Charles A. Bailey, Appellant |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied June 21, 1928.
Appeal from Carroll Circuit Court; Hon. John T. Morris Special Judge.
Affirmed.
Dickinson & Hillman for appellant.
(1) The court erred in overruling plaintiff's motion to suppress evidence for all the reasons stated in said motion and considering all of the facts offered in evidence in support of said motion and because of evidence appearing at the trial showing that said evidence was obtained by a search and seizure in violation of the Fourth and Fifth Amendments of the Constitution of the United States and of Sections 11 and 23 of Article 2 of the Constitution of Missouri, providing that the people shall be secure in their persons, homes and effects from unreasonable searches and seizures, and providing further that no person shall be compelled to testify or furnish evidence against himself in a criminal cause. State v. Owens, 302 Mo. 368; State v Lock, 259 S.W. 116; State v. Padgett, 289 S.W 954; Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543; State v. Hall, 278 S.W. 1028; State v. Pigg, 278 S.W. 1030; State v. Hall, 279 S.W. 102. (2) The court erred in admitting in evidence any of the "moonshine" offered in evidence, for the reason that the same was discovered by the officers by an unreasonable and unlawful search and seizure of the effects of the defendant, when the defendant was not under lawful arrest and without a lawful search warrant, in violation of Section 11 and Section 23 of Article 2 of the Constitution of Missouri, providing that the people shall be secure in their person, homes and effects from unreasonable searches and seizures, and providing further that no person shall be compelled to testify or furnish evidence against himself in a criminal cause. Authorities above. (3) The court erred in submitting this cause to the jury for the reason that there was no evidence that the defendant had committed any crime or offense against the laws of the State of Missouri, except such evidence as was unlawfully and unreasonably taken from the defendant by an unlawful and unreasonable search and seizure of defendant's property and effects, and for the reason that there was no evidence that any person had seen the defendant commit any act which would justify the arrest of the defendant without a warrant, and but for the unlawful arrest of the defendant without a warrant and the unreasonable search and seizure of his effects in violation of defendant's rights under Sections 11 and 23 of Article 2 of the Constitution there would have been no evidence by which the defendant could have been found guilty of any offense against the laws of Missouri, and there was no evidence of any circumstances occurring at any time which would justify the arrest of the defendant without a warrant and the search of his effects by which the evidence offered against him was procured. (4) The verdict was the result of passion and prejudice of the jury. State v. Pigg, 278 S.W. 1030; State v. Hall, 278 S.W. 1028; State v. Padgett, 289 S.W. 954; State v. Hall, 279 S.W. 102; Carroll v. United States, 267 U.S. 132.
North T. Gentry, Attorney-General, and H. O. Harrawood, Special Assistant Attorney-General, for respondent.
(1) No search warrant is necessary for the search of an automobile which is moving on the highway. State v. Hall, 278 S.W. 1028, 279 S.W. 102; Carroll v. United States, 267 U.S. 132; State v. Spaugh, 200 Mo. 571; State v. Underwood, 75 Mo. 230. (2) The sheriff stated that he had received definite and reliable information some time prior to this that defendant was transporting moonshine liquor in Carroll County and carrying concealed weapons in the county; that he had received similar information on the day previous to the arrest, together with a description of the defendant, but had been unable to locate defendant; that the information upon which this arrest was based was received only twenty-five or thirty minutes before the arrest and search. This information would have been sufficient upon which to base an application for a search warrant. State v. Whitley, 183 S.W. 320. (3) The information properly charges a felony under the statute and is sufficient. The term "moonshine" is defined in the instructions as "illegally manufactured distilled intoxicating liquor." This meets the requirement of the statute. Sec. 21, p. 242, Laws 1923; State v. Griffith, 279 S.W. 138; State v. Moore, 279 S.W. 134; State v. Wright, 280 S.W. 703; State v. Brown, 262 S.W. 711. (4) The terms "transport" and "transportation" as applied to intoxicating liquor under the statute mean carrying or conveying from place to place. It is not necessary that the transportation be for sale. Secs. 19, 21, p. 242, Laws 1923. (5) Defendant complains in various assignments of error that the verdict was the result of passion and prejudice on the part of the jury. No affidavits or substantial evidence are offered by defendant in support of this allegation. State v. Griffith, 279 S.W. 137; State v. Howell, 117 Mo. 343; State v. Gonce, 87 Mo. 630; State v. Spaugh, 200 Mo. 614. (6) The restrictions in the Fourth and Fifth Amendments to the Constitution of the United States apply only to Federal officers. State v. Owens, 259 S.W. 101; Weeks v. United States, 232 U.S. 383; Adam v. New York, 192 U.S. 595.
Appellant was convicted of the felony of transporting "moonshine" in Carroll County, in violation of Laws 1923, page 242, Section 21. He was sentenced to imprisonment in the State Penitentiary for a term of five years in accordance with the verdict of the jury. Thereafter he was granted an appeal to this court.
On March 17, 1927, appellant and his wife were in an Essex Coach about three miles south of and driving toward Carrollton, when appellant's automobile was stopped by the Sheriff of Carroll County and his deputy, and nine full quart bottles and a pint bottle, all containing moonshine whiskey, were found in said automobile. Later six one-gallon jugs of "moonshine," which had not been noticed at first and which evidently had been effectually concealed about the automobile, were discovered. Appellant filed a motion to suppress the evidence found upon the search of his automobile, but this motion was overruled.
No question is raised as to the fact of transportation of moonshine whiskey by appellant or that it was his liquor which was being transported. Appellant did not testify, but showed by his wife that he was driving the automobile carefully and peaceably along the public highway and that he was doing nothing to attract attention to himself or to his automobile as being engaged in law violation, and that the officers could not possibly have seen the liquor in his automobile before it was halted. These facts are not disputed.
It appears that the sheriff had just been informed that appellant was driving toward Carrollton with liquor in his automobile. Descriptions of appellant and his family and their accompanying pet dog, together with the description of the automobile, had just been furnished to the sheriff by telephone. Accompanied by his deputy, the sheriff drove hurriedly south of Carrollton on Highway No. 65. He met appellant and recognized him and his automobile from such description. The automobile was stopped and searched with the result above mentioned. A portion of the liquor was analyzed by a chemist, who testified that it contained forty-one per cent of alcohol and that it was potable. It was also shown to be moonshine whiskey, as charged in the information.
Manifestly, the evidence against appellant was most substantial and entirely sufficient to support the verdict of guilt, if such evidence was properly admitted for the consideration of the jury. Alleged error of the trial court in admitting in evidence liquor found in appellant's automobile is the main point relied on by appellant in this court.
It is contended that the officers had no right to stop appellant's automobile on the highway when they could not see the liquor in said automobile and at a time when appellant was concededly driving his automobile in a peaceable and lawful manner; that the officers were not authorized to make a search of the automobile without a search warrant. Appellant contends that the officers had no right to make the arrest without a warrant, unless the offense was committed in their presence, that is, unless they could see the liquor being transported; that, even if the officers were authorized to make the arrest without a warrant upon reasonable suspicion that appellant was committing the felony of transporting moonshine whiskey, the question of the reliability of the information forming the basis of such suspicion was one of fact to be determined by the court. It is contended that the court should have compelled the sheriff to disclose the source of the information upon which he stopped appellant's automobile and made the arrest.
For all the foregoing reasons it is contended that the court erred in overruling the motion to suppress the evidence obtained by said search and also erred in admitting such evidence for the consideration of the jury.
It is admitted that the motion to suppress was properly overruled if appellant's arrest without a warrant was authorized under the circumstances in this case and if the search was thereafter made and the liquor was thus discovered. Appellant's wife testified that the officers halted the appellant's automobile by a command and by means of an exhibition of weapons, and that the occupants of the automobile were ordered to get out, but that nothing was said about taking appellant into custody or arresting him until after the...
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