State v. Higgins
| Decision Date | 18 December 1928 |
| Docket Number | 28716 |
| Citation | 12 S.W.2d 61,321 Mo. 570 |
| Parties | The State v. Hattie Higgins, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.
Reversed and remanded.
R A. Higdon, Roy W. Rucker and Lyons & Ristine for appellant.
(1) The court erred in not sustaining the motion to quash the search warrant and suppress evidence. (a) Because neither the justice who issued the search warrant nor his successor in office had any affidavit or statement as required by the Constitution, and the justice docket did not show any such paper had ever been filed. Nothing is to be presumed in favor of actions of justice of the peace. Secs. 11, 23, Art. 2, Mo. Constitution; State v. Naething, 300 S.W. 830; Briggs v. Ry. Co., 111 Mo. 176; State v. Simpson, 67 Mo. 647; State v. Burks, 132 Mo. 363. (b) Because defendant was charged with having committed a misdemeanor in Lexington Township and the justice who issued the search warrant was a justice of Davis Township and as such had no jurisdiction over a misdemeanor committed in another township and could not issue a search warrant or other legal process therein. Sec. 3759, R. S. 1919; State ex rel. v. Watkins, 212 Mo.App. 501; State v. Alford, 142 Mo.App. 412. (c) Because the premises are not described as near as may be, since the exact description by lot and block was available and because no one could locate the house from the description used. Sec. 25, Laws 1923, p. 244. (2) The court erred in not sustaining the demurrer to the evidence because there was no evidence showing the beverage was potable. State v. Pinto, 312 Mo. 99; Sec. 6602, R. S. 1919. (3) The court erred in admitting incompetent hearsay evidence as to a different offense, to-wit, sale of beer when defendant was on trial for possession, over the objections and exceptions of defendant. State v. Fenley, 309 Mo. 534; State v. Presler, 290 S.W. 142; State v. Williams, 309 Mo. 155.
North T. Gentry, Attorney-General, and Walter E. Sloat, Special Assistant Attorney-General, for respondent.
(1) The motion to quash the search warrant was properly overruled. The witnesses for the State admitted the application for the search warrant was lost, but the sheriff and justice of the peace each testified that an application had been filed before the warrant issued, the justice admitting that the application had been lost from his files. The search warrant, however, was introduced in evidence. (a) Parol evidence is admissible to prove the loss of an application. Ryan v. United States, 285 F. 736. (b) A justice does not have to take evidence to find probable cause for the issuance of a search warrant. The search warrant was introduced in evidence, and states that the court had an affidavit from which he found probable cause. This is sufficient. State v. Stevens, 292 S.W. 37. (c) The statements in the search warrant prove conclusively that an application had been presented to the court. State v. Marshall, 297 S.W. 67. (d) A justice of the peace has concurrent original jurisdiction with the circuit court co-extensive with their respective counties, in cases of misdemeanor, except in commencement of a prosecution. Issuing a search warrant is not the commencement of a prosecution, and a justice may issue therefore to search any place in the county. Secs. 3759, 4115, R. S. 1919. (e) If the warrant is sufficiently definite that an officer may locate the building to be searched it fully complies with the statute. State v. Minor, 1 S.W.2d 108; State v. Catalino, 295 S.W. 569; State v. Hammer, 292 S.W. 61; State v. Shelton, 284 S.W. 434. (2) It is not necessary under the statute to sustain a charge of possession of intoxicating liquor to prove that the liquid is potable. Sec. 6588, R. S. 1919, as amended Laws 1921, p. 414; State v. Pigg, 278 S.W. 1033. (3) The statement made to the sheriff that he had "bought some beer there before," was made in the presence of the defendant and merely aided in proving possession. It was not error. State v. White, 289 S.W. 954.
Davis, C. Higbee and Henwood, CC., concur.
The Prosecuting Attorney of Lafayette County filed in the circuit court an information charging defendant, on August 28, 1926, with the unlawful possession of intoxicating liquor. The jury returned a verdict fixing her punishment at a fine of one thousand dollars and six months' imprisonment in the county jail. Defendant appealed. One Joe Mavel was jointly informed against with defendant, but, as the court on trial discharged him from further custody, that disposes of the matter.
As the charge is a misdemeanor, the cause is here by virtue of a constitutional question timely and duly raised. The facts adduced warrant the finding that the Sheriff of Lafayette County, on August 28, 1926, to whom a justice of the peace had issued a search warrant for that purpose, searched the home of defendant in Lexington, in said county, and there found 381 bottles containing a liquid resembling beer and a container holding about sixty gallons of the same liquid. One bottle was examined by a chemist, who testified that it contained two per cent of alcohol by volume. Defendant made no statement in the officer's presence regarding beer or intoxicating liquor. The sheriff stated that he met two or three boys advancing toward the house, and, over the objection of defendant, he was permitted to testify that two of them respectively remarked that they had previously obtained drinks or bought beer at the house. The sheriff was further permitted to testify that defendant said to them on this occasion, "You s-o-b-, you had better not go up to the courthouse and tell that; if you do, you had better not come back on this side of the river." The defendant refused to offer any evidence. Other facts deemed pertinent to the issues discussed will be found in the course of the opinion.
I. The sheriff entered defendant's home and searched it under authority of a search warrant. It is contended that the search warrant is invalid. First: Because a verified application and petition in writing or an affidavit was not filed before the justice of the peace. It appears that no application was on file immediately preceeding the trial herein. The sheriff testified that he took an application for a search warrant to the justice of the peace, and the search warrant was given him by that officer. Moreover, the search warrant recites that on August 28, 1926, there was filed before said justice a duly verified application and petition in writing by the prosecuting attorney, stating that in the buildings and structures, and upon the premises and place, which were described therein, intoxicating liquor is now being unlawfully manufactured, sold, stored and kept. We have no hesitancy in reaching the conclusion that, even though the application was lost, provided it was filed, secondary evidence of its contents is admissible. [State v. Simpson, 67 Mo. 647.] The search warrant demonstrates that a verified application was filed by the prosecuting attorney, and it recites the contents thereof with such certainty as to show facts sufficient to import probable cause under our decisions. [State v. Naething, 300 S.W. 829; State v. Boyer, 300 S.W. 826.]
Second: Because the description of the premises is insufficient. It reads: "The home of Hattie Higgins being a one-story frame house with brick basement and located on the north one-half (1/2) of the west one-half (1/2) of a strip of ground lying north of North Street, Lexington, Missouri, and north of block thirty-six (36) first addition to Lexington, Missouri." It is said that no one could locate the house from the description, and also that the words "as nearly as may be," used in the Constitution, require the warrant to set forth a certain description of the place to be searched, that is, by lot and block.
If the place to be searched is sufficiently recognizable from the description to enable the officer executing the warrant to locate the premises with definiteness and certainty, it is all the Constitution requires. This does not require necessarily such a description as is used in the conveyance of real property. The description, as required by the Constitution, is one which, with particularity enables the officer to go to a definitely ascertained place, so as to exclude all others. In this case, the place designated was the home...
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