State v. Naething

• Citation: 300 S.W. 829,318 Mo. 531
• Decision Date: 12 December 1927
• Docket Number: 27787
• Parties: The State v. Foster S. Naething, Appellant
• Court: United States State Supreme Court of Missouri

300 S.W. 829

318 Mo. 531

The State v. Foster S. Naething, Appellant

No. 27787

Supreme Court of Missouri

December 12, 1927

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Reversed and remanded.

Harry W. Blair and Otto & Potter for appellant.

(1) The search warrant offered in evidence was illegal and void and the court erred in refusing to quash the same and suppress the evidence obtained thereunder. (a) The facts in this case show a flagrant violation of defendant's rights under the Constitution of this State and of the United States. There was no pretense of any showing having been made before the justice as to probable cause for the issuance of a search warrant. In construing those sections of the Missouri Constitution which are identical with the provisions of the Federal Constitution, this court will, in liquor cases follow the Federal courts. State v. Owens, 302 Mo 369. Warrants issued upon an affidavit that affiant believes or has good cause to believe defendant possesses intoxicating liquors are void, and the evidence procured thereby should be suppressed. Veeder v. United States, 252 F. 418; State v. Lock, 302 Mo. 415. (b) The affidavit of the prosecuting attorney states a pure conclusion -- there is no statement of any facts or circumstances from which the justice could have made any examination of the facts. At a trial, the prosecuting attorney would not be permitted to state that "defendant had intoxicating liquor in his possession," because that is a conclusion; he would be required to state the facts and circumstances of his knowledge of the possession and also as to the liquor being in fact intoxicating. Reutlinger v. State, 234 P. 224; Colley v. Commonwealth, 243 S.W. 913; United States v. Kaplan, 286 F. 964; Hannan v. State, 233 P. 401; United States v. Deloic, 2 F.2d 377; Lochlane v. United States, 2 F.2d 427; Hagen v. United States, 4 F.2d 801; Giles v. United States, 284 F. 214; United States v. Donnelly, 288 F. 982; Central Consumer's Co. v. James, 278 F. 252. (2) The court erred in refusing to sustain defendant's motion to permit defendant to view, examine and take samples of the alleged intoxicating liquor which the state then proposed to and thereafter did, introduce in evidence. State v. Lowery, 160 La. 811; State v. Sprinkle, 102 So. 844; Walker v. State, 12 Okla.Crim.App. 179; Cloninger v. State, 237 S.W. 288; Mohler v. Commonwealth, 111 S.E. 454; United States v. Rich, 6 Alaska, 670; People v. Gerold, 265 Ill. 448; United States v. Burr, 25 Fed. Cas. 30, No. 14692D; State v. Musselman, 101 Wash. 330; State v. Davis, 130 P. 962. The fundamental right of a defendant to have a fair and impartial trial implies his right to have a fair and reasonable opportunity to prepare himself for trial. A mere statement of the facts is sufficient to demonstrate the erroneous action of the trial court in refusing to permit the defendant to take samples of the alleged intoxicating liquor and to have them analyzed so that he might summon witnesses in his own behalf and thereby refute the testimony offered by the State both in the form of the liquid itself and of the testimony of the State's chemist based upon a chemical analysis of the liquids examined. (3) The court erred in permitting the State to exhibit before the panel of jurors the kegs and bottles shown by affidavits attached to the motion for new trial to have been placed in the court room and in refusing to order the same removed and to dismiss the jury panel. Thirteen kegs, of three to five gallon capacity, nine jugs and a number of bottles containing an unidentified liquid, were brought into the court room by the sheriff with much gusto and confusion, prior to the empaneling of the jury, and were there conspicuously displayed. While as a matter of law it may be held that guilt goes with an ounce of liquor as well as with ten gallons, the quantity of liquor certainly affects the jury in assessing punishment. This conduct of the State could not but help to inflame the jury's mind, prejudice them against the defendant, and so sway them in the matter of fixing punishment as to work a gross miscarriage of justice and deny the defendant a fair and impartial trial. (4) The court erred in refusing to sustain defendant's motion to quash the information in this case. Sec. 6588, Laws 1921, p. 414; State v. Markus, 171 Mo.App. 38. Where a statute creating an offense contains exceptions negativing guilt, such exceptions must be pleaded in the indictment when they are a part of the statutory definition of the offense; but where they do not define a crime they are matters of affirmative defense. State v. DeGroat, 259 Mo. 364. The definition of the crime of possessing intoxicating liquor contains the exception to the effect that it shall not apply to one possessing liquor in his private residence which has been lawfully acquired and is being lawfully used, and since such language is a part of the definition it must be contained in the indictment. If the words "except as hereinafter provided" had been left out of the definition of the offense then appellant's contention would be without merit, but the insertion of such words in the definition amounts to an incorporation of the exception in the definition and requires the State to negative that exception, and this is true notwithstanding the provisions of another section of the statute which provides, in substance, that in an indictment under the intoxicating liquor law negative averments are unnecessary. (5) The court erred in permitting the jury to pass around bottles of liquid and to smell of them. This proceeding constituted the jurymen witnesses in the case, was an abuse of discretion and reprehensible and improper practice. Thorpe on Prohibition & Industrial Liquor, sec. 1212, p. 670; Gallaghan v. United States, 299 F. 172.

North T. Gentry, Attorney-General, and H. O. Harrawood, Special Assistant Attorney-General, for respondent.

(1) The application and search warrant were sufficient in form and substance. The trial court properly overruled the motion to quash. Laws 1923, p. 244, sec. 25; State v. Cobb, 273 S.W. 736; State v. Perry, 267 S.W. 828; State v. Shelton, 284 S.W. 434; State v. Halbrook, 279 S.W. 395; State v. Hall, 279 S.W. 102. (2) The fourth and fifth amendments to the Constitution of the United States are restrictions of Federal power and have no application to the State. Weeks v. United States, 232 U.S. 383; Thorington v. Montgomery, 147 U.S. 490; Barron v. Baltimore, 7 Pet. 243; Capital City Dairy Co. v. Ohio, 183 U.S. 238; State v. Rudolph, 187 Mo. 67; State v. Parker Distilling Co., 236 Mo. 219. (3) The search and seizure under the application and search warrant in this case does not violate Section 11 or Section 23 of Article 2 of the Constitution of Missouri. Searches and seizures are constitutional when made under valid search warrant, and the evidence thus secured is admissible against defendant. (4) Defendant's motion to permit defendant to view, examine and take samples of the alleged intoxicating liquor which the State proposed to and did introduce upon the trial of the cause was properly overruled. The motion did not state for what purpose he desired samples. In the absence of any showing to the contrary upon the part of the defendant the liquor in question was contraband. Defendant was not entitled to take it away from under the supervision of the court and the officers for a self-serving purpose. There was ample competent testimony upon the part of the State independent of the chemical analysis to prove that the liquor was intoxicating. State v. Griffith, 279 S.W. 135; State v. Morris, 279 S.W. 141; State v. Pinto, 279 S.W. 144; State v. Lunfrunk, 279 S.W. 733; State v. Brokaw, 281 S.W. 105; State v. Brownfield, 256 S.W. 143. Defendant had an opportunity to examine every exhibit in open court, to sample same and to offer testimony as to the kind and quality of the liquor. "A petition for the return of liquor alleged to have been unlawfully seized should affirmatively show that the petitioner has a legal permit to have possession of the liquor, as there is no law requiring or justifying the return of property to anyone whose possession of it will constitute a crime." United States v. Kaplan, 286 F. 963; Rosanski v. State, 140 N.E. 370; Pryor Motor Co. v. Hartsfield, 93 So. 524. (5) The barrels, kegs, jugs, bottles, etc., placed before the jury were all articles legally taken under a valid search warrant; they were properly identified and authenticated and were admissible as evidence against defendant, the fact that they were introduced prematurely did not prejudice the rights of defendant. Such evidence so displayed could have been prejudicial to defendant's rights only if it were not admissible as evidence in the case, or if it had not been admitted later. Smith v. Sedalia, 182 Mo. 9; Root v. Ry. Co., 195 Mo. 374; 2 Wigmore on Evidence (2 Ed.) 682, sec. 1157; State v. Harris, 209 Mo. 423; State v. Duffy, 124 Mo. 1; State v. Moxley, 102 Mo. 387; State v. Murphy, 118 Mo. 714; State v. Stair, 87 Mo. 268; State v. Wieners, 66 Mo. 13; Tiner v. State, 109 Ark. 138; Starchman v. State, 62 Ark. 538; Crawford v. State, 112 Ala. 1. (6) The information properly charges a misdemeanor under the statute. Laws 1921, sec. 6588, p. 414; Sec. 6596, R. S. 1919; State v. Sparks, 278 S.W. 1073; State v. Fenley, 275 S.W. 43; State v. Lunfrunk, 279 S.W. 733; State v. Hull, 279 S.W. 222; State v. Stanley, 273 S.W. 139. (7) Permitting the jury to examine and smell liquor which had been properly identified and offered in evidence was not error. Underhill's Crim. Evidence (3 Ed.) sec. 100; State v. Holescher, 267 S.W. 426; State v. Brownfield, 256 S.W. 143; State v. Sissom, 278 S.W. 704.

Blair J. Walker, J.,...