State v. Lock

• Decision Date: 11 February 1924
• Docket Number: 23760
• Parties: THE STATE v. WILLIAM LOCK and ANNA LOCK, Appellants
• Court: Missouri Supreme Court

259 S.W. 116

302 Mo. 400

THE STATE v. WILLIAM LOCK and ANNA LOCK, Appellants

No. 23760

Supreme Court of Missouri

February 11, 1924

Appeal from Webster Circuit Court; Hon. C. H. Skinker Judge.

Reversed and remanded.

G S. Dugan and Seth V. Conrad for appellants.

(1) To prevent the introduction of testimony secured by reason of an illegal and void search warrant, the question must be raised by motion to quash such search warrant and to suppress testimony procured thereby, and not by objection to introduction of testimony. State v. Pomeroy, 130 Mo 489; People v. Adams, 48 Law Ed. 575; United States v. Weeks, 58 Law Ed. 657. (2) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue without probable cause, supported by oath or affirmation, and the place to be searched, and the person or thing to be seized, must be particularly described. Fourth Amendment of U.S. Constitution; Sec. 11, Art. 2, Mo. Constitution; Bram v. United States, 168 U.S. 532; Weeks v. United States, 232 U.S. 391, 58 Law Ed. 656; United States v. Wong, 94 F. 834. (3) No party can be compelled in a criminal case to be a witness against himself; nor can he be deprived of life, liberty or property without due process of law. Fifth Amendment of U.S. Constitution; Sec. 23, art. 2, Mo. Constitution; United States v. Rykowski; 267 F. 866; United States v. Slusser, 270 F. 819. (4) The statute under which the affidavit was filed and search warrant was issued in this case provides only for the search of a building or structure. And provides further that no warrant shall be issued to search a private dwelling house occupied as such, unless upon application to the court good reason is shown that such place is used for the purpose of violation of law, or unless such residence is a place of resort, or a place where intoxicating liquors are manufactured. Laws 1921, sec. 6595, p. 416. (5) The purported affidavit upon which the warrant was based was fatally defective because it contained the statement of no fact from which probable cause could be inferred. Laws 1921, sec. 6595, p. 416; Veeder v. United States, 252 F. 418; United States v. Kelih, 272 F. 484.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) It was not error to permit the sheriff and his deputies to testify to the articles found on the premises of appellants, and to permit the introduction in evidence of such articles. State v. Sharpless, 212 Mo. 200; State v. Pomeroy, 130 Mo. 500; State v. Kramer, 206 Mo.App. 54; State v. Pope, 243 S.W. 254. (2) This cause should be transferred to the Springfield Court of Appeals, for the reason that the offense charged is a misdemeanor and no constitutional question has been properly raised. Secs. 2411, 4107, 4108, R. S. 1919; State v. Swift & Co., 270 Mo. 694; Lohmeyer v. Cordage Co., 214 Mo. 685; Littlefield v. Littlefield, 272 Mo. 163; State v. Gamma, 215 Mo. 100.

Davis, C. Railey, C., concurs; Higbee, C., dissents.

OPINION

DAVIS

On the 8th day of November, 1921, the Prosecuting Attorney of Webster County filed an information, consisting of two counts, in the circuit court. The first count, in substance, charged William Lock and Anna Lock, appellants, with having in their possession a still, etc., used and fit for use in making intoxicating liquor. The second count charged them with having intoxicating liquor in their possession.

The appellants were convicted, upon trial, before the court and a jury, upon evidence obtained in the execution of a search warrant issued by the circuit clerk in pursuance to an affidavit filed by the said prosecuting attorney, in the office of said circuit clerk, directed to the sheriff of said county, commanding him to search the residence, other buildings and premises, owned, occupied or under the control of Bill Lock, in Webster County.

The sworn statement of the prosecuting attorney is herewith set forth:

"Statement of Prosecuting Attorney.

"To the Clerk of the Circuit Court of Webster County, Missouri:

"I, J. P. Smith, Prosecuting Attorney duly elected, commissioned, sworn, qualified, installed and acting as such in and for the County of Webster, in the State of Missouri, state that I verily believe that in the building known as the residence, dwelling, barn, and outbuildings, and the premises, and farm owned and under the control of Bill Lock, and buggy vehicles, carriages, automobile owned and under control of the said Bill Lock, on or off said premises and farm, in Webster County, Missouri, as affiant verily believes intoxicating liquors were being manufactured, sold and kept contrary to the provisions of Article VII of Chapter 52 of the Revised Statutes of Missouri, 1919, and as amended by the acts of the Legislature of 1921;

"And further as affiant verily believes that in said building or buildings on said premises and farm above described is used, kept, still, doubler worm, worm tub, mash tub, fermenting tub, vessel, and fixtures used and fit for use in the manufacturing and producing intoxicating liquors, said dwelling house is a public resort, and a place in which intoxicating liquors are manufactured, as affiant verily believes, contrary to Article VII of Chapter 52 of the Revised Statutes of Missouri, 1919, and as amended by the Acts of the Legislature of 1921, contrary to law.

"J. P. Smith, Prosecuting Attorney.

"Subscribed and sworn to before me this 4th day of November, A. D. 1921. Witness my official hand and the seal of my office.

"R. A. Corbett, Circuit Clerk,

"By Marion Corbett, Deputy.

"CIRCUIT COURT SEAL:

"Webster County, Mo.

"FILED: Nov. 4, 1921.

"R. A. Corbett, Circuit Clerk."

The search warrant, issued by the circuit clerk and the return thereon, by the sheriff, is as follows:

"Search Warrant: (Liquor Cases).

"State of Missouri,

County of Webster,

ss

"The State of Missouri to the Sheriff of Webster County, GREETING:

"Whereas, J. P. Smith, Prosecuting Attorney of Webster County, Missouri, on the 4th day of November, 1921, filed a statement in my office verified by his oath, in which he says that he verily believes that intoxicating liquors are being manufactured, kept and sold contrary to provisions of Article VII of Chapter 52 of the Revised Statutes of Missouri, 1919, and amended by the Acts of the Legislature of Missouri, 1921, and that in said buildings hereinafter described are used, kept, still, doubler, worm tub, mash tub, fermenting tub, vessel, and fixtures used and fit for use in the manufacturing and producing intoxicating liquors, contrary to Article VII of Chapter 52 of the Revised Statutes of Missouri, and as amended by the Acts of the Legislature of Missouri, 1921, in the building known as the residence and dwelling, barn and outbuildings, cars, vehicles, wagons and premises owned or occupied and under the control of Bill Lock, in Webster County, Missouri, contrary to law.

"This is therefore to command you, in the name of the State of Missouri, to enter by force, if necessary, the building known as the residence, dwelling house, barn and all outbuildings, car, vehicles, and premises, farm owned, occupied or under the control of Bill Lock, in Webster County, Missouri, and if any intoxicating liquors, malt, mash, or other grain or fruit products, fermented to such point as to be unfit for any use save in the manufacturing of intoxicating liquors, any still, doubler, worm, worm tub, mash tub, fermenting tub, vessel or fixtures, and any sugar or syrup, hops, raisins, and other fruits, and grain of any kind, fit for use in the manufacturing of intoxicating liquors.

"You are hereby commanded to take and hold such property until all prosecutions for violating the provisions of Article VII of Chapter 52 of the Revised Statutes of the State of Missouri, and amended by the Acts of the Legislature of 1921, to be found therein to hold the same as above directed.

"In witness Whereof, I have hereunto set my hand as Clerk of the Circuit Court of Webster County, and affixed the seal of said Court at my office, this 4th day of November, A. D. 1921.

"R. A. Corbett, Circuit Clerk.

"By Marion Corbett, Deputy.

"CIRCUIT COURT SEAL:

Webster County, Mo.

"Return

"I certify that I executed the within writ in the County of Webster on the 4th day of November, 1921, by searching the residence, smoke-house and other buildings on the land of Bill Lock and finding, taking and seizing one still with copper worm and other attachments thereto, 1 1/2 gallons of whiskey in fruit jars, three 10-gallons of mash and other vessels used in the manufacturing of liquor.

"Ira L. Edmonds,

"Sheriff of Webster County, Mo."

On the 16th day of January, 1922, the appellants filed their motion to quash the search warrant, and the return of the sheriff thereon, and to suppress any and all evidence obtained by the sheriff and those acting under and with him, under and by virtue of said search warrant.

Said motion to quash, omitting caption, is as follows:

"Come now the defendants in this case and for the purpose of this motion only, represent and show to the court that they stand charged by information prepared and filed by the Prosecuting Attorney of Webster County, Missouri, in this court, with the crime and offense of unlawfully using and having in their possession a still and other apparatus, used and fit to use in the manufacture and production of intoxicating liquors and, also, with the crime and offense of unlawfully having intoxicating liquors for beverage purposes by use of such still and apparatus, all in violation of Section 6588 Revised Stattes 1919, as amended by the Laws of Missouri, 1921, page 414; that the...