State v. Catalino

• Decision Date: 09 April 1927
• Docket Number: No. 27542.,27542.
• Citation: 295 S.W. 568
• Parties: STATE v. CATALINO.
• Court: Missouri Supreme Court

295 S.W. 568

STATE v. CATALINO.

No. 27542.

Supreme Court of Missouri, Division No. 2.

April 9, 1927.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Pete Catalino was convicted of unlawfully possessing a still, worm, mash tub, and fermenting tub fit for use in the production of intoxicating liquor, and for unlawfully fully possessing liquor, and he appeals. Affirmed.

James Daleo and W. G. Lynch, both of Kansas City, for appellant.

North T. Gentry, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.

WALKER, J.

The appellant was charged by information in the circuit court of Jackson county in two counts; in one with the unlawful possession of a still, worm, mash tub, and fermenting tub, fit for use in the production of intoxicating liquor; and in the other with the unlawful possession of intoxicating liquor, to wit, 45 gallons of corn whisky, containing more than one-half of 1 per cent. of alcohol. Each of these counts charges a misdemeanor. Upon a trial to a jury he was convicted, and his punishment, under each count, assessed at a fine of $1,000 and one year imprisonment in the county jail. From this judgment he appeals.

Before the case was tried the appellant filed a motion to quash the search warrant and suppress the evidence on the ground that the warrant was illegally issued in violation of the Constitution. The court heard the evidence on this motion and overruled it. The constitutional question was preserved in the motion for a new trial.

Upon the trial the whisky and the still, doubler, worm, and mash tubs, which had been taken from the defendant's residence, were identified by the officers and introduced in evidence before the jury. The written statement of the defendant was introduced in evidence, in which he admitted that the still and the whisky belonged to him, and that he had manufactured it at his residence, and had intended to sell it. He did not testify nor offer any testimony.

I. It is contended that an assistant prosecuting attorney is not authorized to make application for a search warrant. While the language of the statute is limited in the granting of authority to officials to petition for a search warrant to the Attorney General and the prosecuting attorney of any county (Laws 1923, p. 244, § 25), an assistant prosecuting attorney, clothed by the law of his appointment with power to assist the prosecuting attorney generally in the discharge of the duties of his office, as at bar (section 11044, R. S. 1919), is authorized, as a legitimate part of such duties, to petition for a search warrant. The rule that statutes concerning the issuance of search warrants should be strictly construed does not militate against the correctness of this conclusion. The right to apply for the warrant being one of the prescribed duties of the prosecuting attorney, his assistant, by virtue of his appointment, is invested with like power.

II. The petition for the warrant definitely describes the place to be searched and the things therein to be seized, verified by the oath of the officer applying for the same. This complies with the requirements of the statute (section 25, Laws 1923, p. 244; State v. Richardson [No. 27,532] 292 S. W. 61, not yet [officially] reported), and furnished a sufficient basis for the issuance of the warrant.

III. From the facts set forth in the verified petition and the showing thereby and thereupon made, it was found by the justice of the peace that there was probable cause to believe that the laws of the state in regard to the prohibition of intoxicating liquors had been violated, and thereupon the warrant was issued; not only therefore did it appear from the petition, but from evidence heard thereon, that cause existed for the issuance of the warrant in conformity with the requirements of the statute. Section 25, supra. Where the facts have been thus established, the justice of the peace was authorized in determining that probable cause existed for his action. State v. Hall, 312 Mo. 425, 279 S. W. loc. cit. 106, and cases; State v. Richardson (No. 27532) 292 S. W. 61, March 14, 1927, not yet [officially] reported.

IV. The place to be searched was described with such particularity as to readily enable the officer to locate it, and the statute in this regard was complied with. Bragg v. State (Tenn.) 290 S. W. 1; U. S. v. Harvey (D. C.) 298 F. 106; Smith v. McDuffee, 72 Or. 276, 142 P. 558, 143 P. 929, Ann. Cas. 1916D, 947, and note. Ordinarily, the description of the property by a street and number is sufficient, provided such street and number covers only a single place of business or an apartment or a residence. U. S. v. Friedman (D. C.) 267 F. 857; 24 R. C. L. pp. 712, 713, §§ 16 and 17 and notes; 23 Standard Encyc. Procedure, p. 385.

V. The statute (section 25, supra) provides that the application for the search warrant shall be "by petition setting forth substantially the facts upon which the same is based, describing the place to be searched and the thing or things to be seized as nearly as may be, which petition shall be verified by the oath of the officer filing the same." It is not necessary to the validity of the warrant that the name of the accused or the owner of the premises to be searched be stated in the application and the warrant. Cases in other jurisdictions holding to the contrary are under statutes requiring the name of the owner to be stated in warrants for the search of premises and the seizure of things found therein.

Numerous cases have arisen in federal jurisdictions and in other states in which the validity of the proceedings was challenged on account of a failure to name the owner in the warrant when the purpose of the latter was simply to authorize the search of a place and the seizure of things therein. In Such cases it Ms been held that the naming of the owner was not a prerequisite to the validity of the warrant. Petition of Barber (D. C.) 281 F. 550; U. S. v. Doe (D. C.) 127 F. 983; Gandreau v. U. S. (C. C. A.) 300 F. 21; U. S. v. Camarota (D. C.) 278 F. 338; U. S. v. Borkowski (D. C.) 268 F. 408; Boyd v. State, 195 Ind. 213, 143 N. E. 355; Metcalf v. Weed, 66 N. H. 176,...