State v. Nordseick

• Decision Date: 06 June 1927
• Docket Number: No. 15817.,15817.
• Citation: 295 S.W. 808
• Parties: STATE v. NORDSEICK.
• Court: Missouri Court of Appeals

295 S.W. 808

STATE v. NORDSEICK.

No. 15817.

Kansas City Court of Appeals. Missouri.

June 6, 1927.

Appeal from Circuit Court, Lafayette County; Robert M. Reynolds, Judge.

"Not to be officially published."

W. E. Nordseick was convicted of possessing intoxicating liquor, and he appeals. Affirmed.

C. I. Bennington, of Sedalia, for appellant.

Ike Skelton, of Lexington, for the State.

ARNOLD, J.

This is an appeal from a verdict of guilty carrying a penalty of $500 fine and one year in the county jail, upon a charge of possession of intoxicating liquor.

The action was instituted in the circuit court of Lafayette county, Mo., by information charging that defendant, on the 4th day of August, at said county and state, did unlawfully possess certain intoxicating liquors, to wit, 3 gallons of whisky, 100 gallons of rye and peach sour whisky mash, and 100 pints of beer, "the said possession of said intoxicating liquors being then and there prohibited and unlawful, against the peace and dignity of the state."

The plea of defendant was not guilty. The record discloses that on August 3, 1925, federal prohibition agent, C. E. Stanley, made an investigation of defendant's premises, and thereupon secured a search and seizure warrant at the hands of the United States Commissioner; and on August 4, 1925, the said prohibition officer, accompanied by the sheriff and one of his deputies, repaired to plaintiff's dwelling, and the federal officer made the search with the assistance of the sheriff and his deputy. The residence of defendant was part brick and part frame, with a basement partly above ground, and the officers found therein the liquors which the information charges were in plaintiff's possession.

The testimony shows the liquor was found in the basement, some of it hidden under a false stairway behind some sacks. Stanley, testifying for the state, identified a bottle of the whisky introduced in evidence as having been filled from a jug found in the said basement. Witness further testified that he found, among other things in the nature of intoxicating liquors, 100 bottles of beer. The sheriff, Mr. Frick, testified that the bottles introduced in evidence had been in his possession since the search and seizure which included a bottle of the beer which was introduced in evidence, and that the bottles so introduced had been labeled and had remained continuously in his possession since the seizure.

Before the trial was begun, defendant filed a motion to suppress the evidence on the grounds that the Constitution of the United States and of the state of Missouri, in so far as prohibition against unreasonable search and seizure were involved, had been violated. The specific grounds of the motion are: (1) That the laws of the United States were not followed in obtaining the search warrant; (2) that the affidavit upon which the search warrant was issued was a nullity; (3) that the warrant was not issued upon the application of any court; and (4) that the search warrant did not properly describe the premises searched. The motion to suppress further charges that the information filed by the prosecuting attorney is not based upon or supported by an affidavit. Evidence was heard on the motion to suppress and the motion was overruled. The evidence in support of the motion was to the effect that the sheriff of Lafayette county, Mo., and one of his deputies, assisted or directed by the federal officer, Stanley, made the search.

Defendant testified: "I live between Main and Franklin on Twenty-First street, 114; one-story brick building painted gray," in Lexington, Lafayette county, Mo. The search warrant against which complaint is urged (a copy of which was introduced in evidence) is dated August 3, 1925, issued by Irvin Bringes, United States Commissioner at Sedalia, directed to Charles E. Stanley, prohibition agent, to search the premises of W. E. Nordseick, "residence and outbuildings located on a tract of ground on the east side of Twenty-First street, being the second house north of Franklin street, said house being a two-story frame house, all located in the city of Lexington, Lafayette county, Mo." The officer is therein commanded to enter said described premises, with all proper and necessary assistance, by such agent authorized, "in the daytime or in the nighttime, and to search said premises, also all drawers, boxes, closets, and any other containers therein, and to then and there seize any and all stills, or parts of stills, condensers, worms, vats, tubs, barrels, pumps, cans, hose, pipe, or any other article and implements designed and intended for use, or which is being used, in the unlawful manufacture of intoxicating liquor, and all fermenting mash suitable for distillation and the unlawful manufacture of intoxicating liquor, and all intoxicating liquor containing more than one-half of 1 per cent. of alcohol by volume, the same to be held and disposed of by you...