State v. Hobbs

• Decision Date: 03 November 1925
• Citation: 279 S.W. 200,218 Mo.App. 448
• Parties: STATE OF MISSOURI, Respondent, v. W. H. HOBBS, Appellant.
• Court: Missouri Court of Appeals

279 S.W. 200

218 Mo.App. 448

STATE OF MISSOURI, Respondent, v. W. H. HOBBS, Appellant.

Court of Appeals of Missouri, St. Louis

November 3, 1925

Appeal from the Circuit Court of Marion County.--Hon. V. L. Drain Special Judge.

REVERSED.

Judgment reversed.

H. Clay Heather, E. W. Nelson and Lewis O'Connor for appellant.

(1) No search warrant shall issue to search any building except upon probable cause and upon a written application or petition of the proper official, duly verified, setting forth the facts upon which the same is based, describing the place to be searched and the thing or things to be seized as nearly as may be. The warrant should follow the petition in describing the place to be searched and the thing or things to be seized. Laws of Mo. 1923, page 244; Sec. 11 of Art. 2, Court of Mo. (2) There was no application or petition filed with the justice of the peace for a search warrant to enter and search the building described in the search warrant, to-wit "One story brick building occupied by William Hobbs--located in Block 62 of the city of Palmyra, Liberty Township, Marion county, Missouri, further said premises is on or about two hundred feet west of the rear of the premises of H. Clay Heather." The following being the description in the application for the search warrant, to-wit: "One story brick building located in city of Palmyra, Marion county, Missouri, in Block of city close to and near C. B. & Q. R. R. track and immediately west of said curve--and being on or about two hundred feet from the rear of the premises of H. Clay Heather." Clearly this latter description does not describe the premises mentioned in the first description. It follows that the search warrant was issued without any showing of probable cause to believe that intoxicating liquors were being manufactured, sold, etc., in the building described in the search warrant. Laws of Mo. 1923, page 244; Sec. 11 of Art. 2, Constitution of Mo.; State v Owens, 259 S.W. 100; State v. Lock, 259 S.W. 116; State v. Tunnell, 259 S.W. 128. (3) The application for the search warrant is wholly insufficient in law. 1. It was not verified and filed with the justice before the issuance of the warrant. 2. It does not describe the same property and premises described in the search warrant. 3. It does not describe the premises sought to be searched as nearly as may be. Laws of Mo. 1923, page 244; Thompson v. Atate, 130 N.E. 412. (3a) Instruction No. 1, for the plaintiff, given by court of its own motion, instructs that the jury may convict without finding a material fact which constitutes one of the ingredients of the crime as charged in the indictment and for which the defendant was tried. 12 Cyc. 614; Goldsberg v. State, 92 N.W. 906; State v. McCaskey, 104 Mo. 648. (4) The evidence obtained by the officers by reason of the search and offered in evidence by the State, over the objections of the defendant, was illegally obtained and violation of the Constitutional rights of the defendant, as guaranteed by sections 11 and 23 of article 2 of the Constitution of Missouri, and the defendant's motion to quash the search warrant and suppress evidence obtained thereby should have been sustained and defendant discharged, as the search warrant was issued and the search and seizure were without probable cause. Laws of Mo. 1923, page 244; State v. Owens, 259 S.W. 100; State v. Lock, 259 S.W. 116; State v. Tunnell, 259 S.W. 128. (5) The application and petition for the search warrant, on its face is merely prima-facie evidence that the prosecuting attorney, Roy Hamlin, made oath to such petition and application and is not conclusive evidence that such was done. Parole evidence may be introduced to show that Hamlin did not make affidavit thereto and that the justce's jurat affixed thereto is not true in fact. The court erred by rejecting defendant's profert of evidence to show that Hamlin did not make oath to the application for the search warrant. Albie v. Jones, 82 Ark. 414, 102 S.W. 222; Brand v. Swindler, 68 W.Va. 571, 70 S.W. 362; Squires v. Detwiler, 45 Colo. 366, 101 P. 342; Russell v. Holman, 156 Ala. 432, 47 So. 205; Kunkle v. Johnson, 268 Ill. 442, 109 N.E. 279; People's Gas Co. v. Fletcher, 81 Kas. 76-83; Duff v. Virginia Iron Co., 136 Ky. 281, 124 S.W. 309; McGuire v. Wilson, 5 Neb. Rep. 130, 99 N.W. 244; Chaffee v. Hawkins, 89 Wash. 130, 154 P. 143; Pierce v. Georger, 103 Mo. 543-544; Barrett v. Davis, 104 Mo. 559; Steffin v. Bauer, 70 Mo. 400-401; Belo v. Mays, 79 Mo. 70-71; Mays v. Price, 95 Mo. 611; Commings v. Leedy, 114 Mo. 476-477; Mullins v. Reiger, 169 Mo. 529-530; Davis v. Montgomery, 205 Mo. 271-281.

Roy Hamlin, Prosecuting Attorney, and Ben Ely, Jr., Assistant Prosecuting Attorney, for respondent.

(1) Where application for a search warrant is filed before a justice of the peace bears the signature of the prosecuting attorney followed by a regular jurat signed by the justice of the peace, and the warrant issued thereupon states that the prosecuting attorney has filed his sworn statement before the justice and that upon such sworn statement and the evidence thereupon adduced the justice has found probable cause, can the verity of such record be impeached by parol evidence tending to show that the prosecuting attorney did not actually swear to the complaint and that the justice in issuing the warrant did not read over the complaint or a supporting affidavit of another party sworn to in his presence and filed with the complaint? (2) Where a search warrant describes the premises to be searched as a one-story brick house in block--city of Palmyra (a town of 1,500 inhabitants, said block being located at the very edge of the town and about two hundred feet from the rear of the residence of H. Clay Heather (a prominent attorney and former State senator) is this sufficient? (3) Where a warrant is based upon a complaint and a supporting affidavit of a witness must the description in the warrant follow the complaint exactly or can the justice take the description in the warrant from all the evidence before him, providing it is clear that the place he orders searched is the one mentioned in the complaint of the prosecuting attorney? (4) In a prosecution for possession of intoxicating liquor must the basic instruction of the court require the jury to find the liquor to have been potable and fit for beverage purposes when they were also required to find it to have been whiskey and all the evidence in the case was that it was whiskey, no request for a definition of intoxicating liquor having been made by defendant? (5) The trial court did not err in excluding parol evidence tending to impeach the certificate of the justice upon the application for the search warrant and the recitals of the warrant itself: (for) (a) The judicial record of a justice of the peace cannot be impeached by parol evidence. 5 Wigmore Evidence (2 Ed.), sec. 2450, p. 352 et seq; Collins v. Kaurmann (1893), 55 Mo.App. 465; Ewing v. Donnely (1885), 20 Mo.App. 6; Sappington v. Lewz (1893), 53 Mo.App. 44; Olin v. Zeigler (1891), 46 Mo.App. 193; Fisher v. Lane (1772), 2 Wm. Bk. 834; Boomer v. Lane (1833), 10 Wend. (N. Y.) 525. (b) There being no legal requirement of the entry of a minute of the proceeding, the papers mentioned constitute the record. 5 Wigmore Evidence (2 Ed. 1 ct. 24) sec. 2450, p. 352. (6) The description was sufficient since the sheriff by following it and making due inquiry could not make a mistake in identifying the place to be searched. U. S. v. Chin On (D. C. Mass. 1924), 297 F. 533. (a) This is particularly true since the warrant named the owner of the place and this in itself is sufficient description. State v. Goetz (Mo. App., 1924), 255 S.W. 345; Peo v. Lienarto (Mich., 1924), 196 N.W. 326; Bradley v. State (Miss., 1924), 98 So. 458; Mathews v. State (Miss., 1924), 100 So. 18; State v. Noble (W. Va., 1924), 123 S.E. 237; Ingram v. Com. (Ky., 1923), 254 S.W. 894. (7) Instruction number one was correct. State v. Yayler, not yet reported; Hensley v. U. S. (1924), 288 F. 370.

BENNICK, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.--

Defendant was charged in an indictment filed in the circuit court of Marion county on November 24, 1923, with the unlawful possession of intoxicating liquor, and upon a trial of the case before a jury was found guilty and his punishment assessed at a fine of $ 200. Timely motions for new trial and in arrest of judgment were filed and overruled and an appeal was allowed to this court.

Prior to the trial of the case defendant filed a motion to suppress certain evidence alleged to have been obtained by unlawful search of his dwelling house. The basis for his motion was the allegation that the petition for the search warrant, although it purported verity on its face, had not in fact been sworn to by the prosecuting attorney until after the warrant itself was issued by the justice of the peace and the search thereunder made by the officers, and that the entry, search and seizure under such warrant were illegal as was also the use against defendant in the trial of the case of evidence so obtained.

Before the jury was called, evidence was heard on this motion and the following facts disclosed: W. S. Hayden, the justice of the peace by whom the warrant was issued, testified that on November 7, 1923, Mr. Gross, a deputy sheriff of Marion county, Mr. Scothorn, the foreman of the grand jury, and a gentleman unknown to the justice, called at his home, where he at the time was engaged in repairing the roof, at which time they presented him with the application for the search warrant and the warrant itself, both on prepared legal forms requiring only the jurat of the justice to the application and his signature to the warrant....