State v. Halbrook

• Decision Date: 22 December 1925
• Docket Number: No. 26643.,26643.
• Citation: 279 S.W. 395
• Parties: STATE v. HALBROOK et ux.
• Court: Missouri Supreme Court

279 S.W. 395

STATE v. HALBROOK et ux.

No. 26643.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Appeal from Circuit Court, Dent County; W. E. Barton, Judge.

Newton Holbrook and wife were convicted of unlawfully possessing intoxicating liquor, and they appeal. Affirmed.

Wm. P. Elmer, of Salem, for appellants.

Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The appellants, husband and wife, were convicted in the circuit court of Dent county on a charge of unlawfully possessing intoxicating liquor, a misdemeanor, and the punishment of each was assessed by the jury at a fine of $200. Because of certain constitutional questions raised, an appeal was allowed to this court from judgment in accordance with the verdict.

The amended information, filed April 6, 1925, and based on section 6588, Laws 1921, p. 414, charges that the defendants, at Dent county, on February 6, 1925, unlawfully had in their possession certain intoxicating liquors, to wit, whisky for beverage purposes, etc. On the same day the defendants filed a motion to quash the search warrant and suppress evidence discovered on the execution of the warrant. There are ten specifications in the motion, but they may be summarized as follows: (a) The complaint upon which the search warrant was issued does not state facts authorizing its issuance. (b) It was issued and served in violation of section 11, art. 2, of the Constitution of Missouri, and does not describe the place to be searched or the person or thing to be seized, and was not based upon probable cause, and there was no finding of probable cause; the affidavit sets forth opinion and hearsay evidence, and no statement of facts is contained therein, and there is no finding of facts by any court of justice that the facts set forth in the application are true, and no testimony offered upon which the justice could find any probable cause for the issuance of the warrant. (c) Because section 25, Laws 1923, p. 244, is in violation of the Constitution of Missouri and the Fourth Amendment to the federal Constitution, providing against unreasonable search and seizure in homes, papers, and effects; said section does not specify the particular facts the application shall set forth, nor the grounds upon which the application for search warrant might be based; said section authorizes the officer to take and destroy grain products, etc., fit for use in the lawful manufacture of intoxicating liquor, upon the judgment and opinion of the officer serving the warrant, without the judgment of the court, and the arrest of persons found using them without any warrant. (d) Said search warrant violates section 23, art. 2, of the Constitution of Missouri, compelling the defendant to furnish evidence against himself by the unreasonable search and seizure authorized by section 25 aforesaid, and by authorizing the search warrant without probable cause, supported by oath or affirmation reduced to writing. (e) Because neither the sheriff nor any other prohibition agent had any knowledge of the storing of intoxicating liquor or the possession thereof by the defendant on said premises. And (f) said section 25 deprives the defendant of his property and liberty, without due process of law, and violates section 30 of article 2 of the constitution of Missouri, in permitting the arrest of the defendant and the destruction of the property described in said section without the judgment of any court of record, and without giving the defendant an opportunity to be heard before any court prior to the taking and destruction of said property.

In the application for the search warrant read in evidence, Clyde C. Cope, prosecuting attorney, upon his oath, states that in the hereinafter described buildings on the premises of Newton Halbrook, in a log building, about 36 feet long and 16 feet wide, with a wagonshed attached, said log building being divided with a driveway about the center, and having a corncrib in the west end, said building being about 48 yards from the house where Newton Halbrook lives, on a farm owned by Mary Halbrook (here the land is specifically described) in Dent county, intoxicating liquor is being unlawfully stored and kept; that thereat and therein is also being used and kept vessels, fixtures, and equipment and parts thereof fit for use in the unlawful manufacture and production of intoxicating liquor. The application then prays for the issuance of a warrant to search the premises described. It was sworn to before Ike Epstein, justice of the peace.

There was also filed with said justice the affidavit of John R. Welch, sheriff of Dent county, in substantially the same language, with this addition: That intoxicating liquor, containing more than one-half of 1 per cent. of alcohol per volume, is being manufactured, stored, kept, and sold, and that men were seen coming from the premises in an intoxicated condition, and that men that came from said premises have had fruit jars with intoxicating liquors, and intoxicated persons have told that they obtained their liquor from said Newton Halbrook, and affiant has seen intoxicated persons in the neighborhood of said Newton Halbrook's place and leaving said premises. Thereupon the justice of the peace issued a warrant directed to the sheriff of Dent county, or any constable, reciting that, whereas Clyde C. Cope, prosecuting attorney, had filed his verified application and petition in writing (setting it out in full), be it known that, from the facts set forth in said verified petition, and the showing thereby and thereupon made, it is found by me that there is probable cause to believe that the laws of the state of Missouri, in relation to the prohibition of intoxicating liquor, as set forth in the statutes in such cases made and provided, are being violated at and in the buildings, structures, and upon the premises and place described in said petition and in the manner therein charged. The warrant proceeds to command the officers named to search the premises described for intoxicating liquor and for equipment, utensils, etc., fit for use in the manufacture of intoxicating liquor, and, if any be found, that they seize and take possession of the same, to be dealt with according to law, and that they arrest any person or persons found using or in possession or control of any such intoxicating liquor, article, or thing, that such persons may be dealt with according to law, and that they make due return, etc. Indorsed on said warrant is the following return:

"I certify that I executed the within writ in the county of Dent on the 6th day of February, 1925, by searching the within described premises and finding and seizing a 5 gallon jug containing intoxicating liquor.

                  "[Signed]    John H. Welch, Sheriff."
                

We quote from the statement of learned counsel for the appellant:

"In support thereof (the motion to quash the search warrant) they (appellants) offered the testimony of the Prosecutor Cope, and Sheriff Welch and Justice Epstein. The defendants asked questions of Cope and Welch to ascertain if they had been to defendants' premises prior to the making of the affidavits, or if they had any knowledge of the facts set forth in the affidavits, all of which was ruled out on objection of the state, and defendants excepted."

Defendants, however, made no offer to prove that the affiants had no personal knowledge of the facts stated in the affidavits.

The sheriff and his deputy, Bates, testified, in substance, that on the way to Halbrook's residence they met Mrs. Halbrook on horseback and informed her of their purpose; that Mrs. Halbrook returned to her house in advance of the officers. She went into the corncrib, came out, closed the door, backed up against it with a club in her hands, and, with oaths, told the officers she would kill them if they attempted to enter the crib. The sheriff, who had previously read the warrant to her, again read it to her. The officers detected the odor of whisky, pushed Mrs. Halbrook aside, entered the crib, and saw a five-gallon jug inverted on a pile of corn in the shuck, and found it to be saturated with whisky as far down as they could reach. They seized the jug, which still contained a little whisky, and produced it at the trial, with its contents. About the time the officers seized the jug, the defendant Newton Halbrook arrived and demanded that they allow him to shake the jug, which the sheriff declined to do. The defendants and others testified that Halbrook kept the jug solely for gasoline used in filling the tank of his automobile. Mrs. Halbrook testified: "We had it (the jug) in there filled with gasoline." She followed the sheriff to his car, and asked him if there was anything In the jug.

The court overruled the motion to quash the search warrant and to suppress the evidence found on the search, to which ruling the defendants saved an exception.

1. The evidence offered at the trial was ample to justify the finding of the jury that the defendants unlawfully possessed intoxicating liquor as charged in the information. The main contentions by appellants' learned counsel, as set forth in the motion for new trial, are that section 25, Laws 1923, p. 244, violates section 11, art. 2, of our Constitution; that the search warrant was void on its face, and that the search and seizure of the alleged evidence against defendants were in violation of the defendants' rights under the search and seizure clause of the Constitution. Section 11, art. 2, reads:

"That the people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, as nearly as may be; nor without probable cause, supported by oath or affirmation reduced to writing."

Section 25, Laws 1923, reads in part:

"The...