State v. Marshall

• Decision Date: 23 June 1927
• Docket Number: No. 27502.,27502.
• Citation: 297 S.W. 63
• Parties: STATE v. MARSHALL
• Court: Missouri Supreme Court

297 S.W. 63

STATE v. MARSHALL

No. 27502.

Supreme Court of Missouri, Division No. 2.

June 23, 1927.

Error to Circuit Court, Shelby County; Chas. T. Hays, Judge.

Tom Marshall was convicted of possessing intoxicating liquor, and he brings error. Affirmed.

Matthews & Jones, Waldo Edwards, and Wm. M. Van Cleve, all of Macon, for plaintiff in error.

North T. Gentry, Atty. Gen., and J. D. Purteel, Sp. Asst. Atty. Gen., for the State.

WHITE, J.

August 17, 1925, defendant, charged with possession of intoxicating liquor, was found guilty by a jury in the circuit court of Shelby county, and punishment assessed at a fine of $400 and imprisonment in the county jail for one year. The charge was a misdemeanor, under section 6588, R. S. 1919, as amended in the Acts of 1921 (Acts 1921, p. 414). The defendant in the trial court raised certain constitutional questions which were ruled against him. Accordingly he sued out a writ of error in this court, which has jurisdiction.

On January 30, 1925, the defendant operated a soft drink parlor on Weed avenue in the city of Macon. On that day the deputy sheriff of Macon county, Jack Williams, armed with a search warrant, searched the premises there and found a quart bottle about one-third full of corn whisky, also found other intoxicating liquor, according to the testimony of the officer. The defendant strenuously objected to the sufficiency and the competency of the testimony in relation to that matter. He testified that he sold soft drinks, jobbed empty bottles, etc., but handled no intoxicating liquor. He was present at the time the deputy sheriff searched the place, and denied that any intoxicating liquor was found. He offered evidence to the effect that his general reputation for truth and veracity was good. The evidence was excluded on objection of the state. Before the trial he filed motion to quash the jury panel, motion to quash the search warrant, motion to quash the information, and motion to disqualify the judge, all of which were overruled and each of such rulings is assigned here as error.

The information was filed in the circuit court of Macon county. An application for change of venue was filed before Judge Drain of that court, and was sustained, and Judge Hayes of the Tenth judicial circuit was called to try the case. The defendant then filed an application for disqualification of Judge Hayes, which was overruled. The defendant then filed application for change of venue on account of bias and prejudice of the inhabitants of Macon county. This application, supported in due form by proper affidavits, was sustained, and the case was sent to Shelby county, in the same circuit as Macon county, where it was tried.

I. The plaintiff in error complains of the refusal of Judge Hayes to disqualify himself on appellant's motion. This motion was filed and this ruling had in Macon county. No term bill of exceptions was filed in Macon county. The court took evidence on that motion and certain records were introduced. The record and proceedings in Macon county were certified by H. S. Easley, clerk of the circuit court of Macon county, and transmitted to Shelby county. Attached to that record is what is designated as a bill of exceptions, purporting to contain the evidence taken on a plea to the jurisdiction, or, rather, the motion to disqualify Judge Hayes. This document purports to be certified by the official stenographer. It is not included in the clerk's transcript; it is not certified by the clerk; it is not signed by the judge; there is nothing to show that it was ever filed in Macon county. It is not incorporated in the bill of exceptions filed in Shelby county, and could not properly be incorporated in that bill of exceptions. In order to be a matter of record for our consideration it would have to be incorporated in a bill of exceptions and duly filed in Macon county. Therefore the alleged disqualification of Judge Hayes to hear the case is not before us for consideration.

II. Error is assigned to the overruling by the court of the motion of plaintiff in error to quash the panel on the ground that the statute was not complied with in impaneling the jury. All we know about that appears in the assignment of errors in the brief. No such motion appears in the record which we have for consideration. It is not In the bill of exceptions. If it were it would not prove itself. State v. Murphy, 292 Mo. loc. cit. 287, 237 S. W. 529. There is no evidence in the record showing that the jury was not properly impaneled according to law. No motion to quash the information appears in the bill of exceptions.

III. It is next claimed that the motion to quash the search warrant was improperly overruled, because such search warrant was invalid for several reasons mentioned, and the search was in violation of the defendant's constitutional rights. The application for a search warrant was filed in Macon county. A copy of it was sent with a transcript to Shelby county. The motion to quash does not appear in the bill of exceptions filed in shelby county. We might on that account refuse to consider the matter, but the court took evidence upon the application. The application, the search warrant, and the order issuing it were introduced in evidence. In taking that evidence the court treated it as if the motion were present, and, since a copy of it was in the transcript from Macon county, we will consider it. We have to strain a point to consider this evidence, for it does not appear under the heading "Bill of Exceptions." In order to consider it we will presume the heading is misplaced.

The application for the search warrant was presented by the prosecuting attorney, verified, stating that in a certain building in the possession of Tom Marshall and operated as a soft drink parlor, describing the location of the premises in the city of Macon, county of Macon, "intoxicating liquor is being unlawfully manufactured, sold, stored and kept," etc., and praying for a search warrant. The search warrant was signed by the clerk of the circuit court of Macon county, January 30, 1925. It recites that Glenn B. Evans, prosecuting attorney, on that day "filed before me, the undersigned clerk of the circuit court," etc., his duly verified application, etc., then concludes as follows:

"Be it known from the facts set forth in the said verified petition and showing thereby and thereupon made (and upon the order of said court herein), it is found by me that there is probable cause to believe that the laws of the state of Missouri," etc., "are being violated. [It commanded the sheriff to make the search.] Given under my hand this 30th day of January, 1925, at my ___. H. S. Easley, Clerk Circuit Court of Macon County, Mo."

The point is made that the circuit clerk, not being a judicial officer, could not make a finding of fact, and could not order the warrant. There is no doubt about the correctness of the position that the clerk could not find probable cause and issue the search warrant on his own authority.

The argument of plaintiff in error runs thus: The recital in the search warrant that the application was "filed before me, the undersigned clerk," shows it was not filed in the court. The further recital, "it is found by me that there is probable cause," means that the finding was made by the clerk; that it was the clerk to whom the application was presented, who made the finding of probable cause, and who ordered the issuance of the warrant. The application purports to be presented to the circuit court because it begins, "In the Circuit Court of Macon County," and continues, "Your petitioner prays." It is therefore addressed to the circuit court. The search warrant then was issued in the name of the state of Missouri.

The order of the circuit court in relation to the matter recites:

"Now comes Glenn B. Evans, prosecuting attorney of Macon county, and files his petition, praying that the search warrant be now issued," etc.

Then follows a description of the premises and statements in the application. It proceeds:

"Whereupon the said petition is seen and considered by the court and the evidence of witnesses duly sworn is heard in support thereof. And it appearing to the court the said application is supported by credible evidence, it is ordered by the court that the clerk of this court issue a search warrant as herein prayed."

The recital in the search warrant itself that upon "showing made and upon the order of the court" the finding was had, the order reciting that the petition for the search warrant was filed in the court, that the court took evidence upon it, and ordered the issuance of the search warrant, all this sufficiently proves that the application was presented to the court and the court found the existence of probable cause.

Section 25, Acts of 1923, p. 244, provides that upon the filing of an application, and it appearing to the satisfaction of the court that there is probable cause, a search warrant shall be issued, "which search warrant shall substantially recite the facts set forth in said petition, and it shall thereupon be the duty of the officer executing such search warrant," etc. The search warrant is not required to recite the order of court finding probable cause. It is entirely sufficient for the purposes of the officer that the facts stated in the petition are recited so that he may know the place to be searched. Therefore the recital in the warrant of the finding of probable cause by the clerk may be regarded as surplusage.

The order of the court shows the probable cause was found by the judge. The clerk's loose method of writing the warrant does not nullify the order. We cannot presume that the court ordered one search warrant and the clerk issued another. Only one was authorized, and that must have been the one issued.

While the order of the court does not in express terms say that the court found probable cause, it does say that from the evidence of witnesses the...