State v. Bauer

• Decision Date: 18 December 1928
• Docket Number: 29162
• Citation: 12 S.W.2d 57,321 Mo. 603
• Parties: The State v. William Bauer and Paul De Bartalo, Appellants
• Court: Missouri Supreme Court

12 S.W.2d 57

321 Mo. 603

The State v. William Bauer and Paul De Bartalo, Appellants

No. 29162

Supreme Court of Missouri

December 18, 1928

Appeal from Jefferson Circuit Court; Hon. E. M. Dearing Judge.

Affirmed.

P S. Terry and R. E. Kleinschmidt for appellants.

(1) No prosecuting attorney or circuit attorney in this State shall file any information charging any person or persons with any felony until such person or persons shall first have been accorded the right of a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed. Sec. 3848, R. S. 1919. (a) The affidavit upon which the preliminary hearing was based utterly failed to state the substance of the offense of which defendants were convicted, that of using a still, and the subsequent proceedings and the conviction of defendants were therefore invalid. State v. Flannery, 263 Mo. 579; Secs. 3822, 3823, 3824, 3826, 3827, 3828, 3848, R. S. 1919. (b) Proof was properly introduced that a preliminary hearing was not accorded defendants as to the charge of using a still, the crime of which they were convicted. State v McKees, 212 Mo. 138. (c) Defendants did not waive their rights to a preliminary hearing upon the purported charge contained in the amended information, the felonious use of a still, and the trial without such preliminary hearing was therefore void. Sec. 3848, R. S. 1919; State v. Flannery, 263 Mo. 579; State v. McKee, 212 Mo. 138; Ex parte Buckley v. Hall, 215 Mo. 93. (d) The purported charge under which defendants were convicted was that of using a still, a felony, as provided in the first subdivision, Sec. 2, Laws 1923, page 237; but the affidavit under which a pretended preliminary hearing was held charged them merely with the possession of a still, a misdemeanor. State v. Turner, 273 S.W. 740. (2) The application for a search warrant must name the owner or the party in possession of the premises and describe the premises to be searched with reasonable certainty. State v. Perkins, 284 S.W. 1024; State v. Richardson, 292 S.W. 61. (a) The search warrant issued in this case does not describe the place to be searched as nearly as may be, as required by the Constitution. It commands the sheriff to enter the premises "in Big River Township, west of Jones Creek, joining the John Kriegbaum Farm, in the farm of Bauer, in a frame house or in the garage and outbuildings, connecting in use therewith, or in the curtilage of outbuildings, barns, chicken house on same." Such description is insufficient. State v. Lock, 259 S.W. 124; Smith v. McDuffy, 72 Ore. 276; State v. Stogsgill, 297 S.W. 977. (b) The fact relied upon to constitute a probable cause for the search of the residence is that N. C. Eaves, a deputy sheriff, when he got inside of the premises, "scented the odor of the cooking of mash of some kind," but such fact is not sufficient to bring the residence or private dwelling commanded to be searched within any exception to the general rule, and consequently did not justify the search of the dwelling and curtilage. United States v. Leach, 24 F.2d 966; United States v. Palma, 295 F. 149; Staker v. United States, 5 F.2d 312; Vorhies v. United States, 299 F. 275; Gambino v. United States, 48 S.Ct. 137. (c) The warrant in this cause being invalid, it was improper to permit the introduction of any evidence obtained by the officers who were on defendant William Bauer's premises by virtue of a void warrant. State v. Pierce, 269 S.W. 406; State v. Owens, 259 S.W. 100; State v. McNally, 259 S.W. 1042; State v. Palma, 295 F. 149.

Stratton Shartel, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.

(1) The amended information fulfills all legal requirements. Sec. 2, Laws 1923, p. 237. (2) In support of their motion to quash appellants introduce in evidence the affidavit of the Sheriff of Jefferson County made in support of his application for the search warrant. While this affidavit did not contain the word use it did state, "and such still was then and there in unlawful, felonious operation making and distilling alcoholic liquors aforesaid." This is a sufficient designation of use to comply with the requirements of the statute. Defendants also introduced the transcript of the justice of the peace as to his findings and actions in binding the defendants over to the circuit court. This was positive proof of the preliminary examination held on December 17, 1925. There was no proof of a failure to award another preliminary examination, and the proof that one was held on December 17th does not of itself prove that a second one was not given. Such proof or offer of proof must appear in the bill of exceptions in order to present this question to the court. State v. Tunnell, 296 S.W. 426; State v. McKee, 212 Mo. 148; Ex parte Buckley, 215 Mo. 93. The motion to quash was properly overruled. State v. Jeffries, 210 Mo. 302; State v. Thompson, 289 S.W. 788; State v. Langford, 240 S.W. 168; State v. Flannery, 263 Mo. 579; 16 C. J. 314, sec. 557; sec. 564, p. 316. (3) Whether the description in the warrant with defendant's Christian name omitted is of sufficient definiteness to make it valid is a question that the respondent submits to the court without comment. State v. Sillyman, 7 S.W.2d 256; State v. Nordsieck, 295 S.W. 808; State v. Stough, 2 S.W.2d 767; State v. Minor, 1 S.W.2d 108; State v. Lofton, 1 S.W.2d 830. (a) The prosecution produced evidence to establish probable cause to justify the search independent of the warrant. One of the three officers testified that he smelled an odor of liquor when he came near Bauer's barn lot, he being on Bauer's premises at the time. Neither the sheriff nor the other deputy, who made the arrest, detected these odors before searching the barn. Respondent likewise submits this question of probable cause, as based on the above related facts, to the court without argument. State v. Loftis, 292 S.W. 29; State v. Rhodes, 292 S.W. 78; State v. Hale, 279 S.W. 102. (b) It is the position of the State, however, that any deficiency of the search warrant is available to defendant Bauer alone. De Bartalo had no interest in the premises searched and had no constitutional rights involved in a search of the house, barn and other buildings belonging to Bauer. State v. Fenley, 275 S.W. 36; State v. Pinto, 312 Mo. 99; State v. Griffith, 311 Mo. 630; State v. Norris, 279 S.W. 141. (c) Respondent further desires to submit the question as to whether the defendant Bauer is entitled to attack the validity of the search. The cases indicate that a man cannot complain of an illegal search if possession of the premises is in another and not in him. If that be correct, the defendant's objection to introduction of evidence obtained by the search is inconsistent with his testimony that he had leased it to another who was in possession of it. Jones v. United States, 296 F. 632; Haywood v. United States, 268 F. 803; State v. Fenley, 275 S.W. 36. (4) To object to the use of the word operate instead of the word use is a mere play on words. They are practically synonymous and would mean identically the same thing to a jury. Any objection on this score is cured by the instruction itself when it reads, "as charged in the amended information." The amended information employs the word "use" as contained in the statute.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

The appellants were jointly charged, in the Circuit Court of Jefferson County, with the unlawful use and operation of a still for the purpose of distilling and manufacturing whisky for sale. They were tried together, and the jury found them guilty and assessed their punishment at imprisonment in the penitentiary for two years. They were sentenced accordingly, but the sentence of De Bartalo was commuted to confinement in the Reform School for Boys at Boonville for two years, upon it appearing to the satisfaction of the court that he was under the age of twenty-one years. The case is here on their appeal.

The proof offered by the State shows that, on the afternoon of December 17, 1925, the sheriff and two of his deputies went to the farm of the appellant Bauer, in Jefferson County, with a search warrant. After they left the highway and entered Bauer's premises, one of the deputies "smelled the odors of whiskey down at the first gate." As they approached closer to the house and barn, Bauer and De Bartalo (appellants) came out of the barn and started to run in the opposite direction from the officers. They were halted, brought back to the barn and arrested by one of the deputies. In the barn, the officers found a "triple still" in operation, making whisky, 135 gallons of whisky, in five-gallon cans, 5000 pounds of lump sugar, in sacks, and "two big vats filled with mash." The fire under the still was removed, but it took several hours for the still to cool sufficiently to be dismantled. While waiting, the officers "watched them [appellants] cook off near a can full" of whisky. Three trucks were used in hauling the still, sugar and whisky "to town." The sheriff and one of his deputies testified that they knew the smell of whisky, and that they had smelled whisky like this whisky before. The sheriff said the boy (De Bartalo) told him "it was about one hundred eighty proof." One of the deputies said "it tested one hundred eighty."

The appellant Bauer took the stand in his own behalf, and according to his testimony, he was fifty-two years of age, was engaged in farming, owned the premises in question, and lived there with his wife and four children. He had leased the cow barn on the west side of his barn to some stranger from St. Louis, whom he had never seen before, nor since the day the lease was given. He neither...