State v. Cox

• Citation: 259 S.W. 1041
• Decision Date: 04 March 1924
• Docket Number: 24159
• Parties: STATE v. COX
• Court: United States State Supreme Court of Missouri

259 S.W. 1041

STATE v. COX

No. 24159

Supreme Court of Missouri, Second Division

March 4, 1924

Jesse W. Barrett, Atty. Gen., and Geo. W. Crowder, Sp. Asst. Atty Gen., for the State.

OPINION

DAVID E. BLAIR, P. J.

This is an appeal from a conviction for violation of the prohibition low in Barry county. Appeal was granted to this court upon the ground that constitutional questions are involved.

The contention of appellant is that the trial court erred in admitting in evidence certain intoxicating liquors found in his dwelling house by means of an alleged illegal search warrant. No motion to suppress the evidence was filed in advance of the trial. The objection to such evidence was made for the first time after the jury was sworn and while the trial was in progress. Courts will not stop the trial to investigate the source of evidence, if the evidence itself as offered, is relevant, material, and competent. State v Pomeroy, 130 Mo. loc. cit. 498, 32 S.W. 1002; State v Sharpless, 212 Mo. loc. cit. 197, 111 S.W. 69. In the case of State v. Alfred Owens (No. 24186) 259 S.W. 100, decided by the court en banc February 11, 1924, it was said:

'When evidence is offered and objection that it was obtained by illegal means is then made for the first time, the court will determine only whether the evidence is relevant and competent. It will not pause to determine the collateral question as to how the evidence was obtained.'

It is the general rule that constitutional questions must be raised at the earliest possible stage of the proceedings or they will be regarded as waived. Speer v. Railroad, 264 Mo. loc. cit. 267, 174 S.W. 381; State v. Gamma, 215 Mo. loc. cit. 103, 114 S.W. 619.

Even if the evidence was obtained by illegal search and seizure, in violation of section 11, art. 2, of our Constitution, and if its use against defendant, when thus obtained, violated section 23, art. 2, as defendant contends, the objection on such ground, made during the course of the trial, came too late for consideration, even in that court, and therefore clearly came too late to be considered by this court upon appeal. The overruling of objections on such grounds, at that stage of the trial, did not raise a constitutional question so as to confer jurisdiction of the appeal upon this court.

Appellant also contends that Rev. St. 1919, § 6595, as amended by Laws of 1921, p. 416, authorizing issuance of search warrants in...