State v. Goetz

• Decision Date: 05 November 1923
• Docket Number: No. 14834.,14834.
• Parties: STATE v. GOETZ.
• Court: Missouri Court of Appeals

255 S.W. 345

STATE v. GOETZ.

No. 14834.

Kansas City Court of Appeals, Missouri.

November 5, 1923.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

"Not to be officially published."

William Goetz was convicted of manufacturing intoxicating liquor, and he appeals. Affirmed.

Roy McKittrick, of Salisbury, for appellant.

Clarence Brummell, of Salisbury, and John D. Taylor, of Keytesville, for the State.

BLAND, J.

Defendant was convicted under section 6588, R. S. 1919, as amended (Laws of 1921, p. 413), of manufacturing intoxicating liquors. The information alleges "that on or about the 15th day of September, 1922, at and in the county of Chariton, state of Missouri," the defendant did unlawfully and contrary to the statutes "manufacture certain intoxicating liquors, potable and fit to be used as a beverage, commonly known as wine, against the peace and dignity of the state." Defendant's punishment was assessed at a fine of 8250.

Defendant appealed the case to this court. Several constitutional questions were raised in his brief, and we transferred the cause to the Supreme Court; that court retransferred the cause here, on the ground that the constitutional questions had not been properly preserved. See State v. Goetz (Mo. Sup.) 253 S. W. 710. We will therefore ignore the points made attempting to inject constitutional questions into the case, and pass upon the other points made in defendant's brief.

A search warrant was Issued in this case describing the premises to be searched as a "building known as the private dwelling * * * of Gerald Goetz, located in the N. W. ¼ Sec. 9, Tp. 53, R. 19, in Chariton county, Mo." Under the authority of this warrant the sheriff searched the premises, and there discovered evidence of defendant's guilt, which was used at defendant's trial. It is contended that the search warrant is void, for the reason that it authorizes the sheriff to search the dwelling house of Gerald Goetz and not that of the defendant. Defendant filed a motion for restoration of the property seized under the warrant, alleging as one of the grounds why the search warrant was void that the dwelling described to be searched Was that of Gerald Goetz, whereas the dwelling searched was occupied by the defendant William Goetz. The motion was overruled.

We think that the search warrant was a valid one, and therefore it is unnecessary for us to pass upon the question as to whether the court in any event could direct the redelivery to the defendant of the wine seized. However, the state admits that this method of procedure was proper to raise the question as to whether the court should have permitted the introduction of testimony acquired in the service of the search warrant. The party mentioned in the warrant was not to be searched or seized. It was a warrant to search a specific residence for a specific thing. The evidence shows that the house was located upon a farm which was owned by Gerald Goetz, father of the defendant. The warrant gave the legal description of the property on which the house to be searched was located. Gerald Goetz had recently moved from the premises, and defendant had moved in as a lessee or tenant. Where farms or houses have long been occupied by the owner they often acquire the name of the owner even after he moves and is not in fact occupying the place. The place to be searched was adequately described without mentioning the name of the owner or the person in possession. The statute, section 6393, R. S. 1919, under which the warrant was issued, does not require that it shall designate the person suspected of committing 'the crime by name or otherwise, and it was sufficient to describe the place to be searched and the things to be searched for. 24 R. C. L. p. 715. The identical property to be searched was described according to its legal numbers, and the warrant is not subject to the objection that it was a warrant describing the premises as that of some particular person, and could be and was used in searching the premises of another person which the sheriff desired to search.

Defendant insists that his motion to quash the panel of jurors summoned to try the case should have been sustained. It appears that a panel had theretofore been selected by the county court. In order to fill out the panel it was necessary to summon seven additional men as jurors. These men were summoned by the sheriff. He testified he did not know what case was on trial when he procured these men, and that he had no personal interest in the case. Defendant insists that the sheriff was the prosecuting witness in the case, and was interested in the result of the trial, and that he should not have been permitted to select these seven jurors to try this case. In support of this contention, defendant cited the case of State v. Powers, 136 Mo. 194, 37 S. W. 936. In that case the sheriff bad been tried for criminal practices. The defendant had been a witness against him, and was en trial for perjury alleged to have been committed by the defendant in the trial of the sheriff. The sheriff's name was indorsed on the indictment as the prosecuting witness. It was held in that case that the sheriff was not a proper person...