State v. Minor
| Decision Date | 31 December 1927 |
| Docket Number | 28270 |
| Parties | The State v. R. L. Minor, Appellant |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court; Hon. Guy B. Park, Judge.
Affirmed.
North T. Gentry, Attorney-General, and H. O Harrawood, Special Assistant Attorney-General, for respondent.
(1) There was substantial evidence to support the verdict. The deputy sheriff testified that one of the bottles, which they found, contained whiskey, and the defendant himself admitted having the wine which he had made. All this liquor was put in evidence before the jury and they were permitted to examine it. It is not the province of this court to pass upon the weight of the evidence, and where there is substantial evidence this court will not interfere with the findings of the jury. State v. Perry, 267 S.W. 832; State v Yandell, 201 Mo. 662; State v. Long, 257 Mo 208; State v. Jackson, 283 Mo. 24; State v. Morris, 279 S.W. 141; State v. Henke, 285 S.W. 392. (2) Assignments of error in defendant's motion for new trial are too general and indefinite to save anything for review in this court. Sec. 4079, Laws 1925, p. 198; State v. Standifer, 289 S.W. 856; State v. Vesper, 289 S.W. 862; State v. Murrell, 289 S.W. 859; State v. Lucas, 292 S.D. 714. (3) Defendant complains of the error of the court in permitting and allowing the deputy sheriff on several occasions to go into the jury room and make inquiry whether or not they had reached a verdict. The complaint is made on the ground that such repeated inquiry had the tendency to indicate to the jury that the court was impatient for a return of a verdict, and that such action was highly prejudicial to the defendant. The officer acted within his authority under the statute governing felony cases. This was a misdemeanor and in misdemeanor cases the restrictions governing communication with the jury are more liberal than in felony cases. There is no evidence or record of any kind to support this assignment, and no objection or exception was saved at the time by defendant's attorneys. There is no affidavit filed or other evidence offered to show that the jury was biased, prejudiced or improperly influenced. Sec. 4027, R. S. 1919; State v. Shipley, 171 Mo. 544; State v. Griffith, 279 S.W. 137; State v. Howell, 117 Mo. 343; State v. Gonce, 87 Mo. 630; State v. Spaugh, 200 Mo. 608. (4) Defendant complains of the error of the court in permitting the two jugs of wine to be exhibited to the jury and introduced in evidence. Defendant himself admitted that it was wine. It was proper for the jury to examine and smell the liquor and determine whether it was intoxicating. State v. Sissom, 278 S.W. 704; State v. Brownfield, 256 S.W. 143; State v. Holescher, 267 S.W. 426; United States v. Borkowski, 268 F. 408; Underhill's Criminal Evidence (3 Ed.) sec. 100. (5) It is not necessary to determine the alcoholic content of whiskey. Courts take judicial notice that it is intoxicating. State v. Griffith, 279 S.W. 135; State v. Lunfrunk, 279 S.W. 733; State v. Dengolensky, 82 Mo. 46. (6) Defendant complains of the error of the court in permitting the State's witnesses to testify as to what was done by the deputy sheriffs in the execution of the search warrant issued by the justice of the peace, the sheriff not having been present during the search and seizure. Defendant also objects that there was no legal return made on the search warrant. (a) It was permissible that the deputy sheriff should execute search warrant and make return on same, notwithstanding the fact that it was directed to the sheriff, and the return shows upon its face that it was made by him. State v. Perry, 267 S.W. 830. (b) "Failure of an officer to make return of search warrant does not invalidate the search or seizure made thereunder, the return being merely a ministerial act which may be performed at a later date." Rose v. United States, 274 F. 245. "The failure to make return of a search warrant is only an irregularity which may be corrected on motion." United States v. Kraus, 270 F. 578. (7) The application and search warrant were sufficient in form and substance and met the requirements of the Constitution and statute. The search warrant shows upon its face that it was issued on probable cause and it was authenticated by the signature of the justice of the peace issuing it. The fact that the justice of the peace issuing the warrant did not make a complete record of the proceedings on his docket at the time does not invalidate the application or search warrant. State v. Richardson, 292 S.W. 61; State v. Halbrook, 279 S.W. 395; State v. Cobb, 273 S.W. 736; State v. Perry, 267 S.W. 831; State v. Gooch, 285 S.W. 474. (8) It is sufficient if a search warrant describes the premises so that they may be readily and definitely located by the officer, or, United States v. Borkowski, 268 F. 408; State v. Cobb, 273 S.W. 736. (9) Neither Section 11, nor Section 23, of Article 2, of the Constitution of the State of Missouri, were violated. Searches and seizures are constitutional when made under valid search warrant and the evidence thus secured is admissible against defendant. State v. Shelton, 284 S.W. 434; State v. Lock, 259 S.W. 117.
By information filed in the Circuit Court of Platte County, Missouri, on September 29, 1926, the prosecuting attorney of that county charged R. L. Minor, appellant, with the illegal possession of intoxicating liquor. The case was tried in said court on November 22, 1926. From the verdict and judgment whereby he was found guilty and a fine of $ 200 assessed against him, he has appealed.
Appellant has not favored us with a brief, but we have examined the record with a view of ascertaining if any error appears therein.
Appellant lives in Tracy, Missouri, where he conducts a store, dealing in groceries, soft drinks, ice cream, and kindred lines of merchandise. On September 7, 1926, the prosecuting attorney filed with a justice of the peace an application, verified by him, for a search warrant, charging therein that the defendant:
"In the hereinafter described buildings and structures and at and upon the hereinafter described premises and place in said county and state, to-wit a store building and dwelling house adjoining and the premises located -- the village of Tracy, Mo., Platte Co., Missouri and which is occupied by Bob Minor, intoxicating liquor is being unlawfully manufactured, sold, stored and kept."
Thereupon a search warrant was issued under which deputy sheriffs searched the building and found behind the counter two jugs filled with sour wine; on the back porch, in a place where the defendant kept an ice-cream freezer, they found a bottle of whisky; in the rear of the building, on the defendant's premises, they found a number of bottles, all of which contained a small quantity of liquid, which one of the deputy sheriffs collected and produced at the trial. This he testified was whisky of an inferior grade. A large number of empty bottles was also found in the rear of the store building.
The defendant testified that the wine in the two jugs was freshly made, for his own use; that he made wine for his own use every year; that he put sugar in it to keep it from souring; and that on this occasion he covered the jugs with rags because he had no corks available; that he did not know that putting sugar in wine would cause it to ferment. He denied any knowledge as to the bottle of whisky found on the back porch; he accounted for the bottles found behind the store by stating that he bought bottles from boys and traded candy for them; he did not know why, but principally to please them. Several boys testified that they had sold the defendant bottles for three cents apiece.
Before entering upon the trial the defendant filed a motion to quash the search warrant and to suppress the evidence as to finding the alleged intoxicating liquor, because the search warrant was and is illegal and void as being in violation of the 4th and 5th Amendments to the Constitution of the United States and Sections 11 and 23 of Article 2 of the Constitution of the State of Missouri providing that The motion further states that on September 7, 1926, the Sheriff of Platte County and his deputies, acting under said void search warrant, in violation of the Constitution and laws of this State, unlawfully entered and searched his private dwelling and seized and now hold the alleged intoxicating liquors which the defendant is charged by the information with having unlawfully in his possession, and that defendant is the owner of and entitled to the possession of said intoxicating liquors, if any, so seized by said sheriff under said void search warrant.
The defendant read in evidence the application for the search warrant and the search warrant.
Defendant's counsel contended...
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