State v. Pope
| Decision Date | 08 July 1922 |
| Citation | 243 S.W. 253,210 Mo.App. 558 |
| Parties | STATE OF MISSOURI, Respondent, v. OTT POPE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ripley County Circuit Court.--Hon. Almon Ing, Judge.
AFFIRMED.
Judgment affirmed.
J. H Keith and Chas. B. Butler for Appellant.
(1) Penal Statutes are to be strictly construed for the benefit of the citizen. Such statutes are to be strictly construed in those parts which are against persons charged with their violation, but liberally construed in those parts which are in their favor. State v. McClain, 49 Mo.App. 398; State v. McCance, 110 Mo. 398; State v Howard, 137 Mo. 298; State v. Bryant, 90 Mo 534; 36 Cyc. 1180; 36 Cyc. 1186; State v. Balck, 178-392. (2) There was no substantial evidence to support the verdict of the jury, and the court erred in refusing defendant's instruction in the nature of a demurrer at the close of the State's case, and again at the close of the whole case. And where there is no substantial evidence to support the verdict the judgment of the circuit court will be reversed. State v. Paris, 259 Mo. 435; State v. Johnson, 259 Mo. 346; 17 C. J. 367; State v. Ferguson, 221 Mo. 524; Kelley's Criminal Law and Practice, sec. 462; Holmes v. U. S. 275 F. Rep. 49. (3) The court erred in admitting evidence on the part of the State of the finding of the barrel, keg, worm and mash on search made by the officers of defendant's private dwelling and premises adjoining, by means of a search warrant issued to search the store, shop and stand of defendant, or of the search made with no warrant at all, or no warrant legally issued to search the private dwelling and premises of defendant. 4th and 5th Amen. U. S. Con.; Holmes v. U.S. 275 F. 49, and cases cited; Dukes v., U.S. 275 F. 142, and cases cited; Amos v. U.S. 41 S.Ct. 266.
No brief for respondent.
Defendant was charged by information with having in his possession "a still, doubler, worm, wormtub, a mash tub, a fermenting tub used and fitted for use in the production of intoxicating liquor," contrary of the provision of section 6588, Revised Statutes 1919, as amended, Laws 1921, p. 414. The jury were instructed that if they found from the evidence that the defendant unlawfully had in his possession "a worm, wormtub, or mash tub used or fit for use in the production of intoxicating liquor" then they would find defendant guilty. Defendant was found guilty and his punishment fixed at a fine of $ 300, and one year in jail. In due time he filed his motion for a new trial and also a motion in arrest. These were overruled, and he appealed.
The principal questions raised in the motion for new trial and considered in defendant's brief are the sufficiency of the evidence and the legality of a search warrant issued by the clerk of the circuit court on the affidavit of the prosecuting attorney to search defendant's dwelling. The search warrant does not appear in the record, but the trial proceeded on the theory that such a warrant was issued, and it was spoken of during the trial as though it existed. Counsel in their brief say: "We presumed at the trial there had been a search warrant issued by the clerk to search the private residence of the defendant, and objected to the admission of evidence accordingly, but we now fail to find any search warrant at all in the files of the case authorizing the officer to search the private dwelling, although a statement and affidavit was filed in vacation of court by the prosecuting attorney for the issuing of one. The sheriff testified that he had a search warrant and under it searched defendant's dwelling. The warrant was issued under and by the authority of section 6595, Revised Statutes 1919, as amended in 1921. This affidavit was signed by the prosecuting attorney, and was duly sworn to before the clerk of the circuit court on November 4, 1921, was filed, and the search warrant immediately issued, and under this warrant the sheriff and city marshal, acting as the sheriff's deputy for the occasion, entered and searched defendant's dwelling. The building was occupied by defendant, his two children, and his mother. The mother owned the building and perhaps most of the furniture, but defendant furnished everything for the family, and the place was his dwelling. The sheriff found on the outside of the house, but under the eaves thereof, a sixteen-gallon barrel, and a five-gallon keg. The sixteen-gallon barrel had about a half bushel of meal in the bottom, and was filled or nearly so with water, and this mixture had commenced to sour or ferment. The keg had a copper worm in it, and this worm "fit a small hole in the bottom side of the keg." In the house the sheriff found a sack of what he took to be brown sugar, but did not examine, and also a copper boiler on the cook stove. The sheriff took "about a gallon of the soured stuff" and poured out the remainder. He also took the copper worm, and the worm and the mash were produced in evidence at the trial, and the sheriff and his deputy were permitted over defendant's objections to testify as to what they saw, and what they found in the search. Other places under the control of defendant were searched under a separate warrant, and some bottles and fruit jars were found, but no intoxicating liquor of any kind was found at any place. Defendant and his mother testified that the meal was put in the barrel to make chicken feed; and it was made up of some spoiled meal. They also testified that the keg with the worm in it had been about the place for two or three months, and all this time had been in plain view of anyone about the place, and had been played with by the children. Defendant claims that he found the keg with the worm in it on the railroad right of way near Doniphan one night and carried it home and threw it down, and that it had been about the place ever since. The boiler on the stove was the property of the mother and fit a place for it on the stove where served as a reservoir and had so served for over ten years. There was no evidence that the boiler had been tampered with in any manner so as to make it suitable to use in connection with the copper worm for the manufacture of whiskey.
When the State opened its case and had the sheriff on the stand, and had got down to the point the defendant made this objection: "By Judge KEITH: Now, if Your Honor please, I desire to object to that testimony based upon this search warrant; in the first place, because the search warrant wasn't legally issued; the statute provides that before a private dwelling can be searched under this law, that application for issuing such warrant must be made to the court, and that a showing upon that application must be made to the court in session, or a private dwelling can't be searched; that a search warrant issued by the court, upon a hearing upon an application made by the State, and then, upon proper showing, the court may issue such warrant; and that wasn't done in this case." The objection was overruled and exception saved. At the close of the direct examination the defendant moved to strike out the evidence given by the sheriff on the same grounds as stated in his objection to the introduction of the evidence. This motion was denied and exception saved. The same objections, ruling and exception were made as to the evidence of the city marshal who accompanied the sheriff and assisted in executing the search warrant. The State offered in evidence the mash, and the worm. Objection was made, but overruled, and exception saved. Defendant offered a demurrer at the close of the State's case, and at the close of the whole case, but was overruled, and saved exception.
Defendant contends that the search warrant was illegally issued, and is therefore void. If that were the case defendant is in no position to complain, because of the manner in which he sought to exclude the evidence obtained by virtue of the search warrant. In State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002, it appears that the defendant was indicted and convicted for the crime of establishing a lottery. Defendant was deceived, and led to believe he was dealing with a bona-fide customer. One day the supposed customer, an officer, came to defendant's office in company with other officers and defendant was arrested, his desk searched without warrant, and papers tending to incriminate were taken. After defendant was taken to the police station he was searched and other articles were taken from him, and these articles were such as to tend to incriminate. In that case it was insisted that the lottery tickets and papers taken from the defendant's person, and from his desk, and introduced in evidence against him transgressed his rights guaranteed by the Fourth and Fifth Amendments to the Federal Constitution, and by sections 11 and 23 of our Bill of Rights. It was held that the evidence, even though obtained illegally, was nevertheless admissible; that section 11 of our Bill of Rights is a restriction on the powers of government, and was not designed as a restraint on the unauthorized acts of individuals. Our Supreme Court in the Pomeroy Case in answering the contention that the evidence there in question was obtained in violation of section 11 of our Bill of Rights quoted with approval from Commonwealth v. Dana, 2 Metcalf 329, a Massachusetts case where a similar question was considered, as follows: ...
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