State v. Privitt

• Citation: 39 S.W.2d 755,327 Mo. 1194
• Decision Date: 05 June 1931
• Docket Number: 30960
• Parties: The State v. Chester Privitt, Appellant
• Court: United States State Supreme Court of Missouri

39 S.W.2d 755

327 Mo. 1194

The State v. Chester Privitt, Appellant

No. 30960

Supreme Court of Missouri

June 5, 1931

Appeal from Ripley Circuit Court; Hon. Charles L. Ferguson Judge.

Reversed and remanded.

Chas B. Butler for appellant.

(1) The laws provide that a search warrant in an intoxicating liquor case shall only be issued upon the written application of the Attorney-General, the prosecuting attorney of any county, or any prohibition enforcement officer, before some court having criminal jurisdiction, which petition shall be verified by the oath of the officer filing the same. Laws 1923, p. 244 sec. 25. (2) An oath means an affirmation sworn or affirmed before some officer who has authority to administer it. An affidavit is an oath reduced to writing. The prosecuting attorney, not appearing before the justice, and not being sworn, the petition for a search warrant was illegal and none should have been issued. The court should have sustained the motion to quash and have suppressed the evidence. Barhydt & Co. v. Alexander & Co., 53 Mo.App. 192. (3) The fact that the petition was not verified by the oath of the prosecuting attorney may be shown by parol. Laswell v. Presbyterian Church, 46 Mo. 279; Finley v. West, 51 Mo.App. 571. (4) The Constitution provides that no warrant to search any place or seize any person or thing shall be issued unless supported by oath reduced to writing. No oath being administered, the court erred in not quashing the search warrant and suppressing the evidence. Mo. Constitution, Art. 2, sec. 11. (5) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause supported by oath or affirmation. No oath being administered in this cause, the warrant was unlawful and the court erred in not quashing the same. U.S. Constitution, Art. IV.

Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.

(1) Defendant's right of freedom from unreasonable search and seizure was not violated. By his consent to the search, he waived his constitutional right, even under the assumption that the search warrant was void. State v. Bliss, 18 S.W.2d 509; State v. Lee, 11 S.W.2d 1045; State v. Allen (Mo. App.), 251 S.W. 69. (2) The application and search warrant were valid on their face and were not rendered void by the fact that the prosecuting attorney did not appear personally before the justice of the peace in making the oath. Laws 1923, sec. 25, p. 244; Kuhn v. St. Joseph, 234 S.W. 355; State v. Gooch, 285 S.W. 474.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

The defendant appeals from a judgment of the Circuit Court of Ripley County following a verdict of a jury finding him guilty of unlawful possession of intoxicating liquor. His punishment was assessed at a fine of two hundred dollars. The appeal was granted to the Springfield Court of Appeals, and that court transferred the cause to the Supreme Court upon the ground that a constitutional question is involved.

On November 26, 1929, Lee Dodd and J. C. Merrell, deputy sheriffs of Ripley County armed with a search warrant which had been issued by J. P. Campbell, a justice of the peace of Doniphan Township, went to certain premises at the intersection of Highway Forty-two and the north end of Main Street in the town of Doniphan, Ripley County, which premises the defendant at the time occupied as a dwelling and used as an automobile filling station. They found in a safe in one of the rooms a jug containing one-half gallon of whiskey. The officers arrested the defendant and seized the jug of whiskey. Thereafter the Prosecuting Attorney of Ripley County proceeded against the defendant by information for unlawful possession of intoxicating liquor.

The defendant, before the trial, filed in the Circuit Court of Ripley County, a motion to quash the search warrant and to suppress the evidence discovered on the execution of the warrant. The court overruled the motion to quash. The defendant by proper and timely objections and by his motion for a new trial, preserved for consideration upon appeal the constitutional questions which the motion to quash raised and which questions moved the Springfield Court of Appeals to transfer the cause. The defendant was tried on the day following the overruling of the motion to quash. The State put in evidence the jug containing whiskey which had been seized in the execution of the search warrant.

The reasons for the motion to quash the search warrant stated in the motion, were, first, that it was in violation of the Fourth Amendment to the Constitution of the United States providing against unreasonable searches and seizures; second, that it was issued and served in violation of Section 11, Article II, of the Constitution of Missouri relating to searches and seizures, and third, that the petition, upon which the search warrant was issued, purported to have been verified by the oath of George D. Sloan, Prosecuting Attorney of Ripley County, as required by Section 4511, Revised Statutes 1929, but that in fact the petition was not so verified.

A hearing was had upon the motion to quash. Justice of the Peace Campbell, Deputy Sheriff Lee Dodd and Prosecuting Attorney Sloan were called as witnesses. The undisputed facts of their testimony were: Mr. Dodd, the deputy sheriff, took the petition for a search warrant to Prosecuting Attorney Sloan who signed it. Mr. Dodd then took the petition to Justice Campbell who issued the search warrant at which the motion to quash was subsequently directed. Justice Campbell did not administer an oath to Mr. Sloan at any time as to the facts set out in the petition for a search warrant.

In answer to Mr. Sloan's question whether he, Justice Campbell, understood that Mr. Sloan considered himself sworn, the Justice answered in the affirmative, as Mr. Sloan had frequently come to the office of Justice Campbell and had secured search warrants without holding up his hand. Mr. Sloan testified that he considered himself sworn. But he did not present the petition to Justice Campbell and he was not in the presence of the Justice between the time that he signed the petition and gave it to Deputy Sheriff Dodd and the time that the search warrant was issued. Mr. Sloan, in his testimony, said of the petition for the search warrant: "I sent it up to Mr. Campbell by Lee Dodd. I signed it here and sent it up to Mr. Campbell to be attested as justice of the peace." And Justice Campbell attested it and issued the search warrant.

I. The first objection made to the search warrant by the motion to quash, namely, that the warrant was issued in violation of the Fourth Amendment to the Constitution of the United States is not well taken. The State of Missouri has the undoubted right to make and enforce its own prohibition laws, limited only by its own Constitution. The Fourth Amendment to the Constitution of the United States is a restriction only on the Federal Government and not upon State governments. [State v. Cook, 322 Mo. 1203, 18 S.W.2d 58.]

II. It is urged that the petition for the search warrant and the warrant itself being valid on their face and in proper form, evidence to controvert the fact of the oath of the prosecuting attorney should have been excluded.

State v. Grady, 84 Mo. 220, states the contrary rule. The defendant was indicted for robbery in the first degree. In the trial court he filed a motion to quash the indictment and a plea in abatement setting forth the fact that the grand jury had found the indictment without having any testimony before them touching the guilt or innocence of the accused. Defendant offered to prove the truth of the allegation, but the trial court refused to allow him to do so. Of this the court said (84 Mo. l. c. 223):

"The proposition that an indictment found by a grand jury without any evidence, will be quashed on defendant's motion, if he sustain the same by proper and competent evidence, is established by the following authorities: [Cases from other jurisdictions cited.] In such an inquiry the question is not as to the sufficiency of the evidence before the grand jurors, for of that they are the judges, but it is whether they had before them any evidence at all."

Other Missouri cases in point are: State v. Faulkner, 185 Mo. 673, 84 S.W. 967; State v. Keener, 225 Mo. 488, 125 S.W. 747; State v. Bowman (Mo. Sup.), 12 S.W.2d 51; State v. Mason (Mo. Sup.), 14 S.W.2d 611; State v. Vaughn, 132 Mo.App. 135, 112 S.W. 728; State v. Ramsauer, 140 Mo.App. 401, 124 S.W. 67; State v. Henan, 163 Mo.App. 368, 143 S.W. 877; State v. Barrelli, 317 Mo. 461, 296 S.W. 413.

In the Barrelli case the defendant moved the trial court to quash the search warrant and to suppress the evidence obtained under the warrant on the ground that the search warrant was in violation of the defendant's rights under Section 11 of Article II of the State Constitution. The trial court overruled the motion to quash. This court, in an opinion by Judge White, reversed and remanded the case for the error of the trial court in overruling the motion. The court in its opinion said (317 Mo. 461, l. c. 464):

"The evidence offered by the defendant on the hearing of the motion showing that the different parts of the premises were occupied by different persons was not disputed by the State. There appears to have been no ruling in this State regarding the sufficiency of a search warrant in which the description of the premises includes all that occupied by several persons. This one is not a description of the defendant's premises 'as nearly as may be.' Such a description has been condemned by the ...