State v. Lofton

• Decision Date: 12 December 1927
• Docket Number: No. 27837.,27837.
• Parties: STATE v. LOFTON.
• Court: Missouri Supreme Court

1 S.W.2d 830

STATE v. LOFTON.

No. 27837.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Motion for Rehearing Denied January 11, 1928.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

John Lofton was convicted of unlawfully manufacturing moonshine, corn whisky, and he appeals. Affirmed.

James A. Bradley and L. R. Jones, both of Kennett, for appellant.

North T. Gentry, Atty. Gen., and A. M. Meyer, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

On May 30, 1925, the prosecuting attorney of Dunklin County filed an information which, in the first count, charged that on May 4, 1925, the defendant feloniously sold moonshine; in the second count, that on the same day the defendant did feloniously manufacture, make, brew, and distill moonshine, corn whisky; in the third count, that on the same day the defendant did feloniously use a certain still, worm, doubler, etc., in the process of distilling, brewing, and manufacturing intoxicating liquor for sale and transportation for sale.

The defendant's premises had been searched and whisky and a still seized under a search warrant issued May 4, 1925. The record shows that on October 28, 1925, the defendant filed a motion to suppress the evidence and quash the search warrant. The motion was taken up and overruled, and the prosecuting attorney dismissed as to the first and third counts of the information, and thereafter, on the same day, the cause was tried to a jury and a verdict was returned finding the defendant guilty as charged in the second count of the information and assessing his punishment at a fine of $500 and 12 months' imprisonment in the county jail. Sentenced accordingly, the defendant appealed.

The first point in the brief of appellant's learned counsel is that the court erred in overruling the motion to suppress the evidence obtained under the search warrant and quash the warrant and all proceedings thereunder (a) Section 25, p. 244, Laws of 1923, is unconstitutional. (b) The application for the search warrant and the search warrant appear on their faces to have been so altered and changed as to make the same invalid. (c) The evidence shows that the search and seizure were made prior to the service of the warrant on the defendant.

The application for the search warrant was made by S. E. Grugett, sheriff of Dunklin county, on May 4, 1925, to L. J. Carter, a justice of the peace of Independence township, on a printed form designed to be used by the prosecuting attorney. In this application, as also in the warrant issued by the justice, a line was drawn through the name of the prosecuting attorney wherever it appeared, and the name of the sheriff and his official title were interlined with pen and ink. In this application the sheriff stated under oath that:

"In the hereinafter described buildings and structures at and upon the hereinafter described premises and place, in said county and state, to wit, the S. E. ¼ of the S. E. quarter of section 21, township 16, range 7, in Dunklin county, Mo., and the two-room frame dwelling and outbuildings situated thereon, the above-described property is owned and occupied by John Lofton, intoxicating liquor is being unlawfully manufactured, sold, stored and kept; that thereat and therein is also being used and kept a still, doubler, worm, worm tub, mash, mash tub, fermenting tub, vessels, fixtures, and equipment and parts thereof, used and fit for use in the manufacture of intoxicating liquor."

The warrant, after reciting the presentation of the application to the justice by the sheriff and the substance thereof, further recites the finding of "probable cause to believe that intoxicating liquor is being unlawfully and feloniously manufactured, transported, stored, possessed, kept, sold, and given away in said building, conveyance, and premises described in said petition, and the said justice doth order said search warrant to issue."

The motion to suppress the evidence sets forth, inter alia, that the officers of this court and other officers (naming them) unlawfully took and have in their possession, and which the state of Missouri intends to use as evidence in this cause against the defendant, a certain still and other utensils charged by said information to have been in the possession of the defendant for use in the manufacture and sale of intoxicating liquors; that said still and other utensils were illegally seized by the sheriff of this county on or about May 4, 1925, at and in the private dwelling house and premises of this defendant, under and by virtue of an illegal and void purported search warrant issued by L. J. Carter, justice of the peace on May 4, 1925; that the application for said warrant is illegal and void and not in conformity with law; that said search warrant was in addition to being illegal and void, at the time of its issuance altered and changed after its delivery; that defendant's premises were searched and the property seized before the search warrant was served on this defendant as the law directs; that said warrant is void as being in violation of the Fourth and Fifth Amendments to the Constitution of the United States and of sections 11 and 23 of article 2 of the Constitution of Missouri; that said application for search warrant does not set forth substantially the facts upon which the same is based as required by section 25, p. 244, Laws 1923; that it sets forth no facts upon which to base or found said application; that the search warrant does not show that said justice determined from any facts set forth in said application or from any evidence heard that there was probable cause to believe that any intoxicating liquor was being unlawfully manufactured, sold, stored, or kept in any building or place described in said petition; that said application and warrant are on printed forms with blank spaces left for dates, names, and description of the place to be searched, and that such kind and character is not the kind of a procedure contemplated by section 25 of the act referred to; that the application sets forth no facts on which to base the same, nor does the purported search warrant find any facts from said application or from any evidence thereon that there is probable cause to believe the defendant was violating the law relative to intoxicating liquors.

Defendant further states if section 25, p. 244, Laws 1923, relative to intoxicating liquor, be given such a construction as would make the application for search warrant in this cause a compliance with and in conformity with the provisions of said act, then said section 25 as aforesaid is unconstitutional, void, and illegal in that it would violate sections 11 and 23, art. 2, of the Constitution of Missouri, for the reason that such a construction would be a grant of legislative authority authorizing unreasonable searches and seizures...