State v. Lee
| Decision Date | 18 December 1928 |
| Docket Number | No. 29070.,29070. |
| Citation | 11 S.W.2d 1044 |
| Parties | STATE v. LEE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Butler County; E. M. Dearing, Judge.
H. A. Lee was convicted of possessing intoxicating liquor, and he appeals. Affirmed.
Cope & Tedrick, of Poplar Bluff, for appellant.
Byron Kearby, of Poplar Bluff, for the State.
Upon a trial without a jury, before E. M. Dearing, Judge of the Twenty-First Judicial Circuit, sitting as special judge in the circuit court of Butler county, after the regular judge of said court had been disqualified, appellant was found guilty of the misdemeanor of having in his possession certain intoxicating liquor, and was adjudged to pay a fine of $500. An appeal was granted to the Springfield Court of Appeals, and that court has transferred the case to this court, on the ground that the decision of the case involves the construction of the state and federal Constitutions, 7 S.W.(2d) 385.
The evidence offered by the state well supports the finding of the trial judge, sitting as a jury, if the trial court properly admitted in evidence proof of the discovery in the house and outbuildings on appellant's premises in Butler county, on or about January 29, 1927, of eight gallons of whisky and other intoxicating liquors. Appellant offered no testimony, except admissions by the state that he bore a good reputation for truth and veracity and as being a law-abiding citizen. Just why a showing of appellant's good character in the capacity of a witness was deemed necessary does not appear, since appellant did not testify.
It appears from the testimony offered by appellant, on his motion to suppress the evidence of the discovery of liquor in buildings on his premises, that Byron Kearby, the prosecuting attorney of Butler county, and H. L. Ettinger and John Howard (private citizens), searched the home and outbuildings on appellant's premises without a search warrant, and by such means alone discovered the incriminating evidence against appellant. The name of the prosecuting attorney was indorsed on the information as a witness for the state. Appellant filed a motion to quash the information because the prosecuting attorney was a material witness against him and was interested in the cause. As grounds therefor, it was stated that, unless the information was quashed, appellant would be deprived of his rights under article 2, §§ 4, 12, and 30, of the Missouri Constitution, and because appellant could not exclude from the court room during the taking of testimony all witnesses against him. Said motion was overruled and this ruling was assigned as error.
Section 742, R. S. 1919, cited and relied on by appellant, has no application to the question here. It merely provides for the appointment of a special prosecutor, when the prosecuting attorney is disqualified by reason of interest in the case or for other reasons. That section does not authorize the court to quash an information filed by an "interested" prosecuting attorney. The citation of 32 Cyc. 719, also has reference merely to the right and duty of the trial court to appoint a special prosecutor in the event the regular prosecuting attorney is disqualified.
Appellant relies on State v. Jones, 306 Mo. 437, 268 S. W. 83. That was a prosecution against Jones for operating an...
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