State v. McBride

• Decision Date: 03 November 1930
• Docket Number: 16979
• Parties: STATE v. McBRIDE.
• Court: Kansas Court of Appeals

32 S.W.2d 134

STATE v. McBRIDE.

No. 16979

Court of Appeals of Missouri, Kansas City

November 3, 1930

Appeal from Circuit Court, Atchison County; D. D. Reeves, Judge.

“ Not to be officially published.”

Roy McBride was convicted of possessing liquor, and he appeals.

Case transferred to Supreme Court.

Wulbur & Cook, of Tarkio, and H. B. Hunt, of Rockport, for appellant.

John M. Gerlash, of Tarkio, for respondent.

OPINION

BOYER C.

Prosecution for illegal possession of liquor. The prosecuting attorney of Atchison county filed an information against defendant in which he was charged with the illegal possession of intoxicating liquor. A warrant was issued and defendant arrested. An amended information was filed charging the same offense and that defendant had previously been convicted of a similar offense. Before trial, defendant filed his motion to suppress evidence, in which said motion it was alleged that said alleged intoxicating liquor was taken from the possession of and from the person of defendant by officers of the state before the defendant’s arrest; that, at the time of the said taking of the said alleged intoxicating liquor by the state, said officers had no warrant for the arrest of the defendant, and had no authority in law at said time to search the person of defendant; and further alleged: "That said search and seizure of said alleged intoxicating liquor was unreasonable, illegal, and violative of sections 11 and 23 of article 2 of the Constitution of the State of Missouri, in that said search was not warranted by law and said Constitution; and to permit the use of said evidence against said defendant in the trial of the case would be compelling the defendant to testify against himself."

Evidence was heard upon the motion to suppress, and the testimony of the sheriff, who made the search and seizure, shows that the sheriff had a search warrant for the premises of the defendant; that he found the defendant sitting in his car in front of his house and said: "I told him I had a search warrant for his premises and put him under arrest." He had no warrant for the arrest of defendant; that he searched the person of defendant, and found two one-half pints of liquor, and, when asked what he arrested the man for, said: "Well, I don’t know what I might have arrested him for at the time"; that it was a wild guess; that he had plenty of suspicion; that he did not know that defendant had liquor on his person; that he subsequently searched the house and found nothing but some empty bottles; that he told defendant to get out of the car; that he was going to shake him down; he had information from other people that defendant was violating the liquor law.

Defendant’s motion was overruled, the case proceeded to trial, and defendant was convicted by the use of the evidence obtained at the time of the search and seizure. There was no other evidence to sustain a conviction. The jury found him guilty, and assessed penalty of one year in jail and a fine of $750.

Thereafter, as shown by the transcript and bill of exceptions, before judgment, defendant filed timely motion for new trial and a supplemental motion for new trial in which it was alleged:

"That the court erred in overruling defendant’s motion to suppress the state’s testimony filed in said cause, to which ruling of the court on said motion, defendant duly excepted. The court erred in admitting in evidence incompetent, irrelevant, and immaterial evidence offered on behalf of the plaintiff, in substance as follows, and for the following reasons:

That witness J. C. Henson, witness Jonas Feighner, witness A. B. Gordon, each testified that, on the 4th of July 1929, that said Henson arrested the defendant in Atchison County, searched the person of defendant, and took from him a pint bottle of intoxicating liquor; and said Henson further testified that said search and seizure of said intoxicating liquor was made after the arrest of defendant without any warrant issued by any of the courts of this state, charging defendant with the commission of crime against the laws of this state; and that said arrest was made without any warrant at all; and that at the time of said arrest said Henson did not know that defendant had said bottle on his person, and could not see the same at the time of said arrest; that said arrest was not made upon view of said bottle of liquor theretofore had; that said search and seizure, and arrest, were illegal, unreasonable, and in contravention of sections 11 and 23 of article 2 of the Constitution of the State of Missouri, in that defendant was arrested for a misdemeanor, to-wit, the possession of intoxicants, without a warrant, no misdemeanor having been committed in view of the officers and it not being shown that said officers arrested said defendant upon probable cause to believe he had committed a felony, and thereafter searched him; that said securing of said liquor without lawful right by said officers, compelled the defendant to furnish testimony against himself."

The motion for new trial was overruled, judgment pronounced ...