State v. Mac Sales Co., 28816

• Decision Date: 19 January 1954
• Docket Number: No. 28816,28816
• Citation: 263 S.W.2d 860
• Parties: STATE v. MAC SALES CO. et al.
• Court: Missouri Court of Appeals

Page 860

263 S.W.2d 860

STATE v. MAC SALES CO. et al.

No. 28816.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1954.

Rehearing Denied Feb. 12, 1954.

Morris A. Shenker, Mark M. Hennelly, Sidney M. Glazer, St. Louis, for appellants.

J. E. Taylor, Atty. Gen., Aubrey R. Hammett, Asst. Atty. Gen., Thomas E. Dowling, Circuit Atty., A. Lowell Morris, Asst. Circuit Atty., St. Louis, for respondent.

HOUSER, Commissioner.

These are appeals by three claimants of personal property from an order of the Circuit Court of the City of St. Louis for the destruction of a considerable quantity of articles condemned as obscene, lewd and indecent. The consolidated appeals, taken in the first instance to the Supreme Court, were ordered transferred to this court for decision. Appeal of Mac Sales Co., Mo.Sup., 256 S.W.2d 783.

(All citations of sections in this opinion relate to RSMo 1949, V.A.M.S., unless otherwise indicated).

Upon the application of a lieutenant of the police department of the City of St. Louis three search warrants were issued by a judge of the circuit court of said city under the provisions of Secs. 542.380 and 542.390 relating to the seizure of obscene articles and pictures. Each of the three warrants was directed to the applicant, Jake Joseph, Lieutenant of the Metropolitan Police Department of the City of St. Louis, commanding him to enter the building in each instance and make diligent search for and seize obscene, lewd, indecent and scandalous pictures, etc. In obedience to the command of the warrant Lieutenant Joseph, together with several other officers of the police department, seized a large number of articles in three separate raids. Among the articles seized were a large number of decks of playing cards on which appear pictures of nude or partially nude women. A hearing was held before the circuit judge pursuant to notice given to the respective property owners as provided by Sec. 542.400. The claimants appeared by counsel and upon the basis of the evidence adduced the court found that the property seized was the kind described in Sec. 542.380 and ordered it destroyed. These appeals followed. Appellants state that they are only interested in the return of the playing cards.

In their briefs appellants raise the following points:

(1) Lack of jurisdiction in the circuit court over the subject matter of this proceeding for the reason that no complaint was filed, as required by Sec. 542.380.

(2) Invalidity of the search warrant and of the application therefor for the reason that neither application nor warrant adequately describes the property 'as nearly as may be,' as required by Sec. 542.390, and that they do not allege and facts showing that the property was sold, published, exhibited, given away or otherwise distributed or circulated.

(3) Invalidity of the search warrant for the reason that it was issued without probable cause, and executed by an officer of the police department rather than by the sheriff or constable, as required by Sec. 542.380.

(4) Lack of evidence that the playing cards in question were obscene, lascivious or indecent.

(5) Lack of evidence that the playing cards were kept for the purpose of sale, distribution or circulation.

Concerning (1), supra, Sec. 542.380 authorizes a search warrant to issue upon the making of a complaint on oath in writing. The instant proceedings in each case were instituted by the filing of a paper designated an 'Application for Search Warrant' in which the police lieutenant upon his oath 'stated and showed' that in the building particularly described 'there are now kept for the purpose of being sold, published, exhibited, and circulated the following articles, to-wit: Obscene, lewd, licentious, indecent and lascivious * * * drawings * * * pictures, and other articles and publications of an indecent, immoral and scandalous character * * *,' praying for the issuance of a search warrant directed to the affiant authorizing him to enter said building, search the same and seize the described property, in order to deal with and dispose of the same according to law. This application was subscribed and sworn to before the circuit judge and filed in Division No. 1 of the Circuit Court of the City of St. Louis.

Appellants argue that a court cannot of its own motion set itself in action; that in order for the circuit court to acquire jurisdiction over the subject matter of forfeiture proceedings under Sec. 542.380 it is necessary, following the seizure of property under a search warrant that a complaint or pleading in the nature of a petition or libel of information be filed; that the complaint should specify the acts which justify the forfeiture of the property, and contain a prayer for forfeiture; that the complaint should be signed by the circuit or prosecuting attorney or other attorney, and that the complaint should be served with the notice of hearing required by Sec. 542.400. They say that a determination under Secs. 542.400 and 542.410 is only for the purpose of protecting the property from a replevin action and is preliminary in character. With this position we cannot agree. Sections 542.380-542.420 provide a separate, independent and self-sufficient procedure authorizing the seizure, forfeiture and destruction of the specified property and articles. It is not preliminary in character. No complaint other than that provided for in Sec. 542.380 need be filed. The requirement of that section that a complaint be made, on oath, in writing, that any of the prohibited property or articles are being kept in the county, etc. satisfies the legal requirement that a pleading must be filed before a court has jurisdiction to enter a judgment. The statute does not provide, and the law does not require, that the complaint be made by a prosecuting official or attorney. It is sufficient that the complaint, or 'application' as it was designated in the instant case, be made by an officer of the metropolitan police force. Sections 542.380-542.420 satisfy the fundamental requirements of pleading, notice, hearing and judgment, and no supplemental procedure is necessary to confer jurisdiction. The point is ruled against appellants.

Points (2) and (3), supra, have not been preserved for appellate review. Any objection to the complaint on the ground of indefiniteness or generality cannot be entertained after judgment where no attack was made by way of motion prior to the hearing. Although alleged generally, the essential elements of a forfeiture case were set forth in the complaint and that was sufficient. If appellants were not satisfied with the general allegations of the complaint they should have attacked the complaint before judgment, and having failed to do so waived the...