State v. Cook

• Decision Date: 04 June 1929
• Citation: 18 S.W.2d 58,322 Mo. 1203
• Parties: The State v. John Cook, Appellant
• Court: Missouri Supreme Court

18 S.W.2d 58

322 Mo. 1203

The State v. John Cook, Appellant

Supreme Court of Missouri

June 4, 1929

Appeal from St. Francois Circuit Court; Hon. Peter H. Huck Judge.

Affirmed.

Raymond S. Roberts for appellant.

(1) The application and affidavit for the search warrant and the search warrant itself based thereon failed to describe the place or premises to be searched "as nearly as may be," which is a requisite under both the State and Federal constitutions, as well as under the national and state prohibition laws enacted pursuant to the Eighteenth Amendment. U.S. Constitution, Article IV; Constitution of Missouri, Art. II, sec. 2. United States v Berkeness, 72 L.Ed. 71; Marron v. United States, 275 U.S. 195, 72 L.Ed. 46; Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, L. R. A. 1915B 834 Ann. Cas. 1915C 1177. (2) The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. Marron v. United States, 275 U.S. 195, 72 L.Ed. 46. (3) If the Congress of the United States which enacted the National Prohibition Law could not enlarge upon it by the enactment of another and different law pertaining to the same subject applying to the Territory of Alaska, how much less can a state like Missouri enlarge upon national legislation by state legislation after the national Congress has once taken charge of legislation on the subject? This Constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. U.S. Constitution, Art. 6, Subdiv. 2. But Legislature in 1923 lost sight of the Bill of Rights contained in the Constitution of the State, the guarantees of the Fourth Amendment to the Constitution of the United States, the supreme law of the land, as provided in Article VI of the Constitution of the United States, as well as the provisions of the National Prohibition Act and repealed practically all previous state legislation on the subject and enacted in lieu thereof a sweeping statute disregarding all human safeguards and all constitutional guarantees. Laws 1923, p. 244, sec. 25. (4) Under this heading of "Supreme Law of the Land," as set forth in Article VI of the Constitution of the United States, it has been held by the Supreme Court of the United States in many cases that a strict adherence to the provisions of the constitutional limitation must be maintained in order that the Federal Government itself may continue to exist and a republican form of government be maintained in the various states composing the Union. On many subjects state laws may be valid until the power of Congress is exercised and congressional legislation enacted pertaining to a given subject, when all state laws pertaining thereto become superseded, either wholly or so far as they are found to be inconsistent. Cooley's Constitutional Limitations (2 Ed.) 19, sec. 18; Ib. p. 293.

Stratton Shartel, Attorney-General, and A. M. Meyer, Assistant Attorney-General, for respondent.

(1) The first ten amendments to the Federal Constitution are not limitations upon the power of the States or the authority of officers operating under state law. They are limitations only upon the power of the Federal Government and its officers. State v. Owens, 259 S.W. 101. The Alaska case cited by appellant is not authority for a different rule. Alaska is a territory, not a sovereign State, and of course it is governed directly by the Federal Government, through Congress, and is under Federal law. Citizens of this State are amply protected in their rights by our State Constitution, and the sovereignty of the State ought not to be bartered away for transient considerations. (2) The description of the defendant's premises contained in the application and search warrant was sufficient. State v. Stough, 2 S.W.2d 767; State v. Nordseick, 295 S.W. 808; State v. Owens, 259 S.W. 100.

OPINION

Blair, P. J.

Appellant was tried and convicted by a jury for the misdemeanor of possessing intoxicating liquor, in violation of Section 6588, Laws of 1921, page 414, and was fined $ 150 and granted an appeal. The presence in the record of a constitutional question fixes our appellate jurisdiction.

On July 23, 1927, and under the purported sanction of a search warrant, three deputy sheriffs of St. Francois County entered and searched appellant's dwelling house in Bonne Terre and found thirteen pint bottles of home brew beer in his refrigerator. They delivered to the sheriff the bottles thus secured. The sheriff had their contents analyzed by an experienced chemist in the employ of the Government at St. Louis, who testified that the bottles examined by him contained home brew of one and one-half per cent alcholic content and that said beer was potable. Appellant offered no evidence.

I. The evidence was sufficient to support the verdict. Said Section 6588, under which the information was drawn, makes it a misdemeanor "for any person . . . to . . . possess . . . intoxicating liquors within, . . . the State of Missouri, except . . . ," etc. The only exception subsequently appearing in the section, which could possibly be thought to affect appellant's situation, reads as follows: "and provided further: That nothing in this act contained shall be so construed as to prevent, or prohibit, the possession of intoxicating liquor in the private residence of the owner thereof, when such intoxicating liquor has been lawfully acquired and being lawfully used," and the burden was upon appellant to show that he had lawfully acquired and was lawfully using such liquor. [State v. Naething (Mo. Sup.), 300 S.W. 829.]

From the unexplained fact that the beer was found in appellant's home, the jury had the right to find that he was in possession thereof within the meaning of Section 6588. The proof showed that the beer found in appellant's possession was intoxicating liquor within the definition of Section 6602, Revised Statutes 1919. [See also State v. Fenley, 309 Mo. 520, 275 S.W. 36.]

It is apparent that the evidence before the jury was sufficient to authorize the verdict it rendered. The assignment that the demurrer to the evidence should have been sustained must therefore be overruled unless, as appellant contends, the evidence of the discovery of the thirteen pint bottles of home brew should have been excluded, because such evidence was obtained by the use of an illegal search warrant. This contention we next consider.

II. It is contended that the search warrant was illegal because it authorized search of appellant's private residence "no part of which was being used as a store, shop or other place of business and no part of which was being used as a place of public resort where intoxicating liquors were being manufactured or sold." Appellant cites and relies upon United States v. Berkeness, 72 L.Ed. l. c. 213 214, to support his contention that, under the National Prohibition Act, no search warrant may be issued to search any private...