State v. Graham

• Citation: 247 S.W. 194,295 Mo. 695
• Parties: THE STATE v. AUSTIN GRAHAM, Appellant
• Decision Date: 09 December 1922
• Court: Missouri Supreme Court

247 S.W. 194

295 Mo. 695

THE STATE v. AUSTIN GRAHAM, Appellant

Supreme Court of Missouri, Second Division

December 9, 1922

Appeal from Reynolds Circuit Court. -- Hon. E. M. Dearing, Judge.

Transferred to Springfield Court of Appeals.

John H Keith for appellant.

Jesse W. Barrett, Attorney-General, and Marshal Campbell, Special Assistant Attorney-General, for respondent.

HIGBEE P. J. David E. Blair, J., concurs in result; Walker, J concurs in separate opinion.

OPINION

HIGBEE, P. J.

The defendant was convicted of the offense of having in his possession intoxicating liquor and his punishment assessed at a fine of $ 100.

The transcript of the record entries includes the motion for a new trial. One of the grounds for the motion is that the court erred in admitting evidence procured without a search warrant, contrary to the provisions of Articles 4 and 5 of the amendments to the Federal Constitution, and of Sections 11 and 30 of Article 2, and of Section 1 of Article 14, of the Constitution of this State, and of Section 6595, Revised Statutes 1919, as amended in the Laws of 1921, page 416. The motion was overruled and an appeal was granted to this court.

The transcript of the record entries concludes with an order reciting the filing of the bill of exceptions. Then follows the authentication of the clerk by which he certifies "the foregoing to be a complete transcript of the files and orders of record in the above entitled cause." The transcript does not include the bill of exceptions, nor make any further reference to it. There is attached to the transcript by staples a document purporting to be the bill of exceptions in this case, signed by the judge on the day of , 1922, and marked "O K" by counsel for plaintiff and defendant. These signatures at the end of the document are apparently in the same handwriting; hence for this reason and the further reason that the original is one of the files in the clerk's office, it must be assumed that the document is a copy of the purported bill of exceptions. It is not authenticated by the clerk.

I. A bill of exceptions, when properly signed and filed, forms a part of the record of the cause in which it is filed. [Sec. 1464, R. S. 1919.] The bill of exceptions is not included in the transcript of the files and orders of record in the cause. The document attached to the transcript is not called for nor referred to as an exhibit attached thereto. It is not authenticated nor does the record afford any means by which it can be identified as the bill of exceptions filed in the cause or a copy thereof. It cannot, therefore, be considered as a part of the record.

II. Assuming that the document attached to the transcript is the bill of exceptions filed in this case, does it appear that the appellant's rights under our constitutional provisions have been infringed?

It appears that a search warrant was issued directing the sheriff to search the automobile of one G. W. Lester and the grips and packages found therein. This warrant, which was lost before the trial, was put in the hands of the deputy sheriff. He found a grip in Lester's automobile which Lester said belonged to Graham. The deputy took it to a barber shop where he found the defendant, showed him the search warrant and told him what he wanted. The defendant took his key and opened the grip and allowed the deputy to search it; he found two pint bottles which Graham said were his and that they contained whiskey. This testimony went in over the defendant's objection that the deputy had no warrant to search the property or effects of the defendant and the search and seizure were in violation of the laws referred to in the motion for new trial. The defendant offered no testimony.

A search warrant issued under Section 6595, Revised Statutes 1919, as amended, Laws 1921, p. 416, authorizing a search for intoxicating liquors, need not name any particular person, the name of the place or structure to be searched being sufficient. There is no merit in the objection that defendant was not named in the warrant, It authorizes the search of Lester's automobile and the grip and packages found therein. [United States v. Camarota, 278 F. 388.]

Section 6595, supra, regulates the issuance of warrants for the search of buildings and structures where it is believed intoxicating liquors are manufactured or sold or kept contrary to the provisions of law. It forbids the issuance of a warrant "to search a private dwelling occupied as such unless some part is used as a hotel, store, or shop, or for any purpose other than a private dwelling, or upon application to the court, good reason is shown that such aforesaid place is used for the purpose of violation of this act, or unless such residence is a place of resort, or a place in which intoxicating liquors are manufactured."

In United States v. Bateman, 278 F. 231, the right of a prohibition officer to stop an automobile on a public highway and search it for intoxicating liquors without the consent of the driver of the automobile and without any warrant for arrest or search, was considered. The court, on page 233, said:

"In adopting the Volstead Act (41 Stat. 305), Congress took into consideration the question of the right to search and seize certain conveyances. In Section 25 of the Volstead Act, there is this provision:

"'No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel or boarding house.'

"Here is an expression of Congress to the effect that in certain instances search warrants shall not be permitted. If Congress had been of the opinion that to search automobiles on a public highway without a search warrant was unreasonable, it certainly would have included, with the prohibition as to dwellings in Section 25, a prohibition as to automobiles.

"Congress had the matter directly before it when it enacted Section 26, which contains the following language:

"'When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law.'

"It has been held by one court that that authorized the search and seizure of an automobile, transporting liquors, in violation of the law. [United States v. Crossen, 264 F. (D.C.) 459, 462.] In the act of Congress approved November 23, 1921, Section 6 provides as follows:

"'That any officer, agent, or employee of the United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor.'

"Again, if Congress deemed it an unreasonable search and seizure in a case like the one before the court, it had a good opportunity to express its convictions, but it did not. This would seem to be a sanction by Congress to search vehicles or other buildings or property without a warrant, unless the same was done maliciously and without reasonable cause.

"It is my opinion that there is no legislation of Congress upon the subject of searches and seizures of automobiles, except as above specified, and the court must in each individual case determine, as a judicial question, whether or not the search and seizure of an automobile is an unreasonable search or seizure, in view of all the circumstances in the case."

In Holmes v. United States, 275 F. 49, the syllabus reads: "Where the only evidence to sustain a charge of illicit distilling was the testimony of prohibition agents that they went to defendant's residence in his absence without a search warrant, and there found certain articles which they believed parts of a still and destroyed, consisting of empty kerosene cans, a keg, a piece of galvanized iron pipe, and a tub, held, that such evidence was illegally obtained, and should have been stricken out on motion, and that in the absence of such motion a motion by defendant for a directed verdict should have been granted."

In Dukes v. United States, 275 F. 142, syllabus 1 reads: "Where a sheriff and his deputy, without a warrant of arrest or search warrant, entered defendant's house through an open door, and seized whiskey which was on a table by which defendant was standing, the fact that defendant did not object, or that he then said they might look around, which they did, finding more in another building, held, not to make the search or seizure lawful, nor to render the evidence so procured admissible against defendant in a criminal prosecution."

In Gouled v. United States, 255 U.S. 298, 305, 41 S.Ct 261, 263, 65 L.Ed. 647, Cohen, an agent of the Government and a business acquaintance of defendant Gouled, under directions of his superior officers, pretended to make a friendly call upon defendant, gained admission to his office and in his absence, without warrant of any character, seized and carried away several documents. The court said: "The prohibition of the Fourth Amendment is against all unreasonable searches and seizures, and if for a Government officer to obtain entrance to a man's house or office by force or by an illegal threat or show of force, amounting to coercion, and then to search...