State v. Egan

• Decision Date: 17 November 1954
• Docket Number: No. 7316,7316
• Citation: 272 S.W.2d 719
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bessie EGAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 719

272 S.W.2d 719

STATE of Missouri, Plaintiff-Respondent, v. Bessie EGAN, Defendant-Appellant.

No. 7316.

Springfield Court of Appeals, Missouri.

Nov. 17, 1954.

S. W. James, Jr., Jefferson City, Horace T. Robinson, Waynesville, Hamp Rothwell, Vienna, for defendant-appellant.

Wayne W. Waldo, Waynesville, Harold S. Hutchison, Vienna, for plaintiff-respondent.

STONE, Judge.

Defendant, licensed under the Liquor Control Law (Chapter 311) to sell intoxicating liquor in the original package, was charged by information with commission of a misdemeanor by sale of a pint of whisky to one Allen T. Cagle on Sunday, January 18, 1953 (Section 311.290). (All statutory references herein are to RSMo 1949, V.A.M.S.) She appeals from conviction by a jury, which assessed a fine. Although defendant stated in her brief that jurisdiction on appeal is in this court, her counsel joined with opposing counsel in suggesting, during oral argument, that the cause be transferred to the Supreme Court because 'the construction of the Constitution * * * of this state' is involved. V.A.M.S.Const. of 1945, Art. V, Sec. 3. If this appeal is 'within the exclusive jurisdiction of the supreme court' [Const. of 1945, Art. V, Sec. 13], the cause should be transferred to that court even though our appellate jurisdiction were not questioned [State v. Plassard, Mo.App., 190 S.W.2d 464(1); State v. Blythe, Mo.App., 186 S.W.2d 55, 56(1); Potashnick Truck Service v. City of Sikeston, Mo.App., 157 S.W.2d 808, 809(1)]; but, our inquiry into this subject must be an independent one, for appellate jurisdiction is not determined and cannot be conferred by stipulation of parties or agreement of counsel [State ex rel. Thompson ex rel. Pugh v. Bright, 298 Mo. 335, 250 S.W. 599, 600(1); In re Bennett's Estate, Mo., 243 S.W. 769; Dye v. School Dist. No. 32, Mo.App., 190 S.W.2d 467(1); State v. Sparks, 180 Mo.App. 495, 166 S.W. 642, 643(1)].

The information herein was filed on January 21, 1953. After the case came on for trial on October 7, 1953, and after a jury was duly impaneled and sworn, defendant filed a motion to suppress the pint of whisky alleged to have been sold to Cagle, on the ground that it 'was illegally taken * * * from the premises of the defendant and James Egan, her husband, for the reason that the search and seizure thereof were made * * * in violation of the constitutional rights and guarantees of the defendant under the provisions of Section 15 of Article I of the Constitution of Missouri.' Following a hearing, the motion to suppress was overruled. We pass without determination the preliminary question as to whether such motion to suppress, filed after the jury had been impaneled and sworn and thus after the trial had begun, came too late. ¹ When the pint of whisky, to which the motion to suppress had been directed, was offered in evidence, defendant's counsel then objected on other grounds, primarily 'for the reason that it has not been properly identified by the prosecuting witness as being the whisky that he says he bought from Mrs. Egan,' but no objection was made on the ground that it had been obtained in violation of the defendant's constitutional guaranty against unreasonable search and seizure. Constitutional questions not only must be raised at the earliest opportunity consistent with good pleading and orderly procedure [State v. Lock, 302 Mo. 400, 259 S.W. 116, 125(11)] but also must be kept alive throughout the case by proper objections [State v. Nordseick, Mo.App., 295 S.W. 808, 810(4)] and must be preserved in the motion for new trial [State v. Medley, 360 Mo. 1032, 232 S.W.2d 519, 523(1)]. There being no element of surprise in the offer of the pint of whisky in the instant case, defendant's failure to object to its introduction on the ground that it was obtained by unlawful search and seizure in violation of her constitutional rights 'was a waiver of the error, if any, in admitting the evidence.' State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 886-887(13). Assuming that the alleged constitutional question had been timely and properly raised, it ceased to be a live issue in the case when defendant failed to keep it alive in her objections to the evidence when offered, and accordingly no constitutional question has been preserved which would divest this court of appellate jurisdiction. State v. Hepperman, supra, 162 S.W.2d loc. cit. 887. See and compare State v. Powers, 350 Mo. 942, 169 S.W.2d 377, 379(7), and State v. Cox, Mo., 259 S.W. 1041(4).

For still other reasons which will become apparent from a brief statement of the pertinent facts, we are of the opinion that we have appellate jurisdiction of this case. Defendant, Bessie Egan, and her husband, James Egan, resided on the north side of U. S. Highway 66 about 3 miles east of Waynesville in Pulaski County, Missouri. Defendant operated a package liquor store and a grocery store. Her husband operated a garage. The Egans lived in quarters at the rear of the grocery. The liquor store was in a 'new building' east of and adjacent to the grocery store. The garage business was conducted in a nearby but separate building. Milford Egan, defendant's son, owned the real estate, including the buildings and the driveway in front or south of them which afforded access to and from Highway 66, but Milford's parents were 'occupying the property.'

About 2:00 to 2:30 P.M. on Sunday, January 18, 1953, Allen T. Cagle, accompanied by two soldiers, drove to the Egan grocery in Cagle's Ford pickup and parked in front of the grocery. Cagle and his companions entered the grocery store, where, according to the state's evidence, Cagle purchased a pint of whisky and some groceries, all of which were put into the same paper sack and carried to Cagle's pickup. Defendant admitted that she had waited on Cagle that day and had sold him some groceries, but she denied the sale of any whisky to him. As Cagle was preparing to leave in his pickup, the prosecuting attorney and sheriff of Pulaski County drove up and stopped in front of the Egan grocery. The sheriff walked to the driver's side of the pickup and the prosecuting attorney walked to the opposite side. In response to the sheriff's inquiry as to 'what he had,' Cagle replied that 'he had groceries.' When the sheriff asked 'if I could see,' Cagle said 'yes' and 'turned the sack over' to the sheriff, who found the pint of whisky in the sack with some groceries.

The sheriff had no search warrant or warrant for arrest, and no arrest was made at that time. As defendant urges, it is true that the pint of whisky found in the paper sack was not visible at any time before Cagle 'turned the sack over' to the sheriff; that neither Cagle nor his companions had committed a misdemeanor in the presence and view of the sheriff [State v. McBride, 327 Mo. 184, 37 S.W.2d 423, 425(5)]; that the sheriff would have had no reasonable ground for arresting Cagle or his companions [State v. Cuezze, Mo., 249 S.W.2d 373, 376(4); contrast State v. Jonas, Mo., 260 S.W.2d 3, 5(5)]; that discovery of the whisky in the grocery bag was not an incident to a lawful arrest [State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743, 745(2)]; and, that the right of security from unreasonable search and seizure extends to motor vehicles [State v. Jones, 358 Mo. 398, 214 S.W.2d 705, 707(3); State v. Wilkerson, 349 Mo. 205, 159 S.W.2d 794, 798-799(6)]. But, it by no means follows that defendant's personal guaranty against unreasonable search and seizure was infringed.

In the instant case, the searth (if, in fact, there was one) was of a motor vehicle owned by Cagle, the pint of whisky in the sack 'turned over' to the sheriff was Cagle's property, and defendant neither had nor claimed to have any right, title or interest in or to either the pickup or the whisky. It is clear from the reported cases that, under these circumstances, there is no basis for defendant's complaint that her constitutional rights were violated. State v. Pigg, 312 Mo. 212, 278 S.W. 1030, 1033(4); Williams v. United States, 10 Cir., 66 F.2d 868, 869(2); Hurwitz v. United States, 8 Cir., 299 F. 449, 453(5), certiorari denied 266 U.S. 613, 45 S.Ct. 95, 69 L.Ed. 468; Nelson v. United States, 8 Cir., 18 F.2d 522, 524(3); Todd v. United States, 5 Cir., 48 F.2d 530, 532(7); Connolly v. Medalie, 2 Cir., 58 F.2d 629, 630(3); People v. Barg, 384 Ill. 172, 51 N.E.2d 168, 171(6); Tacker v. State, 72 Okl.Cr. 72, 113 P.2d 394, 395(3, 4). The right to immunity from unreasonable search and seizure is a personal one; and, even if it were conceded that Cagle's personal guaranty against unreasonable search and seizure was infringed--a question which we need not and do not rule [but, see State v. Lee, Mo., 11 S.W.2d 1044, 1045(4); State v. Allen, Mo.App., 251 S.W. 69(2); 47 Am.Jur., Searches and Seizures, Sec. 71, p. 547]--such violation of Cagle's constitutional rights would be of no legal concern to defendant and could not be asserted by her [State v. Rodgers, Mo., 260 S.W.2d 736, 738(1), 739(5); Safarik v. United States, 8 Cir., 62 F.2d 892, 895(1, 2)].

In considering defendant's contention that nevertheless her constitutional rights were violated because the pint of whisky was 'seized on the defendant's premises and to be used as evidence against her alone,' certain salient facts should be kept in mind. The Egan grocery was open on Sundays--'people generally went there on Sunday to buy groceries.' Access to this roadside business was afforded to the general public over the driveway, in which the pickup was parked when Cagle 'turned the sack over' to the sheriff, and it is not even suggested by defendant that the prosecuting attorney and sheriff were trespassers when they turned into this open driveway. Not all searches and seizures are within the constitutional prohibition, but only 'unreasonable searches and seizures' of 'persons, papers, homes and effects'. Const. of 1945, Art. I, Sec. 15; State v. Watson, 329 Mo. 158, 44 S.W.2d...