State v. Brugioni

• Decision Date: 25 May 1928
• Docket Number: No. 28654.,28654.
• Citation: 7 S.W.2d 262
• Parties: THE STATE v. GEORGE BRUGIONI, Appellant.
• Court: Missouri Supreme Court

7 S.W.2d 262

THE STATE v. GEORGE BRUGIONI, Appellant.

No. 28654.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Macon Circuit Court. — Hon. Allen W. Walker, Special Judge.

AFFIRMED.

Waldo Edwards for appellant.

(1) The search warrant issued by the justice of the peace was illegal and void, because the evidence shows that the applicant for the search warrant who signed and swore to the application had no personal knowledge of the facts therein set out, and there was no evidence introduced before the justice from which he could find probable cause for the issuance of the search warrant. State v. Locke, 259 S.W. 116; State v. Smith, 262 S.W. 65; State v. Hall, 265 S.W. 843; State v. Miller, 266 S.W. 1024; State v. Shellman, 267 S.W. 941; State v. Huckhobe, 269 S.W. 691; State v. Cobb, 273 S.W. 736; State v. Cockrum, 278 S.W. 700; State v. Hallbrook, 279 S.W. 395; State v. Gooch, 285 S.W. 474. (2) The instruction requested by the appellant in the nature of a demurrer to the State's evidence should have been given. One charged with the commission of a crime cannot be convicted upon suspicious circumstances. State v. Elmer, 267 S.W. 934; State v. Smith, 261 S.W. 696; State v. McIntire, 256 S.W. 141. The evidence offered by the State, being the testimony of the sheriff and his deputy as to information obtained by them by virtue of the service of the search warrant, was illegal and incompetent because the search warrant was void. (3) The court should have required the prosecuting attorney to elect upon which count he would proceed to prosecute the defendant. State v. Preslar, 290 S.W. 142; State v. Burrell, 298 Mo. 678; State v. Guye, 299 Mo. 366; State v. Link, 286 S.W. 12. (4) The court should have discharged the jury, as requested by the appellant, when the prosecuting attorney referred in his argument to the failure of the appellant to testify. State v. Snyder, 182 Mo. 462; Sec. 4037, R.S. 1919; State v. Drummand, 204 S.W. 271. (5) The action of the trial court in this case in reprimanding counsel for the defense, and the attitude and demeanor toward the defendant's counsel, prejudiced the rights of the defendant and deprived the defendant of a fair and impartial trial as guaranteed to him by the law and the Constitution.

North T. Gentry, Attorney-General, and A.M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The search warrant and application therefor were valid, although it appeared aliunde that the applicant had no personal knowledge of the facts stated therein. The sworn affidavit cannot be impeached in this manner. State v. Halbrook, 311 Mo. 664; State v. Stephens, 292 S.W. 37; State v. Marshall, 297 S.W. 67; Bowen v. Comm., 199 Ky. 400; People v. Kennedy, 303 Ill. 423; State v. Shaffer (Wash.), 207 Pac. 229; State v. Kees (W. Va.), 114 S.E. 627. (2) The evidence was quite sufficient and there is no merit in appellant's point that one may not be convicted upon suspicion. However true that statement may be, it has no application to the instant case. The evidence of the officers was properly admitted. Cases cited, supra. (3) The court refused to require the State to elect upon which count of the information it would proceed, when that motion was presented in advance of the trial. The court did, however, require an election at the close of the evidence and before the case was submitted to the jury. This practice conforms to the law. State v. Collins, 297 Mo. 261; State v. Young, 266 Mo. 732; State v. Christian, 253 Mo. 393; State v. Daubert, 42 Mo. 242. The counts arose out of the same transaction and were merely different modes of charging the same act, although not the same offense and a conviction on one would be a bar to subsequent prosecution on the other, and the rule permitting joinder in such cases applies. State v. Christian, supra. The rule that a defendant is prejudiced in his defense where he is uncertain as to which charge he must meet before the jury, does not apply to this case, for the reason that there was no defense offered to the charge in either count, the defendant's only evidence being as to his good character, and he could not, therefore, have been prejudiced even though more than one count had been permitted to go to the jury. This court is prohibited by the statute from reversing cases for errors not prejudicial. Sec. 3908, R.S. 1919. (4) It is not reversible error for a prosecutor to state to the jury that certain facts have not been denied, merely because the defendant did not take the stand. The defendant cannot, thus, escape reasonable inferences. State v. Milstead, 285 S.W. 431. (5) There is no merit in the complaint that the court erred in reprimanding defendant's counsel before the jury. The court said "Your objections were not timely. Mr. Edwards. I will strike out the answers." In addition, the court instructed the jury not to consider any colloquy between counsel and the court. The court did everything which was asked by the defendant except to discharge the jury. There was no ruling on the motion to discharge the jury, nor did counsel give the court an opportunity to rule upon it. In any event, counsel for the appellant exaggerates the incident, as reference to the bill of exceptions will show.

WALKER, J.

The defendant was charged by information on two counts in the Circuit Court of Macon County with a violation of the prohibition law; the first count charged the manufacture of whiskey and the other the use of a still, etc., for the manufacture of whiskey. At the close of the evidence the State elected to proceed on the second count and the first count was dismissed. On the submission of the case to the jury the defendant was convicted under the second count, and his punishment assessed at a fine of eight hundred dollars and imprisonment in the county jail for one year. From that judgment he appeals.

Before filing the information in the circuit court the prosecuting attorney made an application before a justice of the peace, under Section 25, Laws 1923, page 244, verified by his oath, for a search warrant, alleging that within a certain building and premises, the location of which was described, owned by and in the possession of the defendant, intoxicating liquor was being manufactured and that a still was there being kept and used for the manufacture of intoxicating liquor. A search warrant was issued in conformity with the averments of the application. The sheriff executed this warrant and in so doing found a still and its necessary accessories in operation in said building and in the possession of the defendant. Upon the evidence thus obtained the prosecuting attorney filed the information. The defendant, by an affidavit of prejudice, disqualified the circuit judge of that circuit, and Judge WALKER of the Ninth Circuit was called to try the case. Upon the case being called for trial the defendant filed a motion to quash the search warrant and to suppress the evidence thereby obtained. The grounds of this motion were; (1) that the warrant did not state facts authorizing its issuance; (2) that it was made without the personal knowledge by the prosecuting attorney of the facts therein stated but solely upon his information and belief; and (3) that it was issued in violation of the personal rights of the defendant, guaranteed to him under Section 11 of Article 2 of the Constitution of this State. After permitting the introduction of testimony the court overruled the same. Thereafter defendant waived arraignment, entered a plea of not guilty and a trial was had, resulting in the conviction of the defendant as stated.

The matters in controversy which have been preserved in the record and are stressed by the appellant to secure a reversal are for our consideration.

I. It is contended that the search warrant issued by the justice of the peace on the application of the prosecuting attorney was void in that its affirmative allegations were made on information and belief in the absence of testimony authorizing the justice to find probable cause for the issuance of Search the same. The purpose of the constitutional provision Warrant. (Sec. 11, Art. 2, Const. Mo.) relating to the issuance of search warrants was to define and limit the authority of the courts to reasonable searches and seizures, and thereby prevent an invasion of personal rights guaranteed under the organic law. The allegations in support of the warrant are affirmatively made and although evidence aliunde was introduced to show that the application was made on information and belief this does not invalidate the warrant. We so held in State v. Hammer, 292 S.W. (Mo.) 60; State v. Richardson, 292 S.W. (Mo.) 61, and earlier cases. Error is not committed by a trial court in refusing to permit an appellant to offer evidence for the purpose of controverting the affirmative allegations made in the application for the warrant. [State v. Gooch, 314 Mo. 646, 650, 285 S.W. 62; State v. Halbrook, 311 Mo. 664, 673, et seq., 279 S.W. l.c. 399; State v. Cobb, 273 S.W. (Mo.) l.c. 738.]

This warrant was issued under the provisions of Section 25, Laws 1923, page 244. Section 25, which we have held not in violation of Section 11 of Article 2 of the Constitution (State v. Halbrook, 311 Mo. 664, 279 S.W. l.c. 399), provides, among other requisites not relevant here, that if it shall appear to the officer before whom it is filed, either from the facts set forth in the petition or from evidence heard thereon, that there is probable cause to believe, etc., it shall be the duty of the officer before whom said petition is filed to issue or cause said writ to be issued. It will be seen, therefore, that the finding of probable cause to authorize the issuance of the warrant is dependent upon one of two conditions; first, upon the allegations of the petition alone and, second, if this be not sufficient, upon evidence heard thereon. Under the first condition, if the petition is affirmative in...