State v. Rodgers
| Citation | 364 Mo. 247,260 S.W.2d 736 |
| Decision Date | 14 September 1953 |
| Docket Number | No. 43228,No. 2,43228,2 |
| Parties | STATE v. RODGERS et al |
| Court | Missouri Supreme Court |
Cope & Ponder, Poplar Bluff, for appellants.
John M. Dalton, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
The primary purpose of this statutory proceeding in rem was to declare a tractor-trailer and 368 cases of whisky of the value of $17,046 contraband; have the property sold and the proceeds paid into the general revenue fund. V.A.M.S. Secs. 311.830, 311.840; State v. Ward, 361 Mo. 1236, 239 S.W.2d 313. On the 4th day of October 1950 agents of the Department of Liquor Control and a member of the State Highway Patrol seized the tractor-trailer and its cargo of liquor and the Supervisor of Liquor Control instituted this action in which he alleged that Harrison Baily Rodgers, Roy Ivan Burke, F. S. Moody and Howard McCormack were transporting the whisky in violation of the laws of Missouri, a felony, V.A.M.S. Sec. 311.460, and that the tractor-trailer and its cargo were, therefore, contraband and subject to forfeiture and sale. The supervisor's petition alleged that the transportation of the liquor was illegal in that there was no previous authorization in writing by the consignee for the shipment; that the bill of lading or memorandum accompanying the cargo did not bear the name of a consignor authorized to ship liquor into Oklahoma, or the name of a consignee who had a legal right to receive the liquor in Oklahoma; and, that the named defendants did not have the required transporter's permit from the Department of Liquor Control authorizing them to transport liquor through Missouri over a designated route. V.A.M.S. Secs. 311.390, 311.420, 311.440, 311.450.
Rodgers was the driver of the truck and Burke was accompanying him on at least a part of the trip across Missouri and, according to one witness, was the agent or representative of F. S. Moody of St. Louis, Oklahoma. Howard McCormack is a resident of Oklahoma City, the principal stockholder and manager of Howard McCormack, Incorporated, a trucking company, the lessee of the tractor and trailer and Rodgers' employer. According to Howard McCormack, the corporation was transporting the liquor on the usual basis of a common carrier. F. S. Moody was said by Howard McCormack to be the 'liquor broker' who ordered and procured the cargo of whisky from the Southern Wholesale Liquor Company of Cairo, Illinois. These named individual defendants were served with process by mail and all of them, except F. S. Moody, filed answers and a joint motion to suppress evidence, and all of them, except Moody, appeared in court in person, were represented by counsel, and testified in the proceedings. At the conclusion of all the proceedings the court overruled the joint motion to suppress evidence, found that the liquor was being transported through Missouri in violation of the laws of Missouri, declared the liquor contraband and ordered it sold. Neither the truck driver, nor Burke, nor Howard McCormack claimed any interest in the cargo of whisky. There was no personal judgment against any of these individual defendants and none of them have appealed, except Howard McCormack, and of course, we are not concerned with whether their rights were violated, or with whether the court erred in any respect as to them in the trial of this proceeding. U.S. v. De Vasto, 2 Cir., 52 F.2d 26, 28-29, 78 A.L.R. 336.
The Universal C. I. T. Credit Corporation and L. G. Nation, being without knowledge of the illegal use of the tractor and trailer, intervened and claimed them under a conditional sales contract and a chattel mortgage in which E. G. McCormack of Nicoma Park, Oklahoma, was the conditional sales purchaser and mortgagor. Upon the hearing of the intervening petitions, in which E. G. McCormack was made an additional, and answering, party defendant, the court decreed that the intervenors were the owners of the tractor and trailer and entitled to their possession and no one has appealed from or contests the validity of that phase of the judgment.
There has been no motion to dismiss the appeal of Howard McCormack, but it is indeed difficult to understand how he is aggrieved by the judgment or why he could or would prosecute an appeal from any part of the judgment. As we have said, there was no personal judgment against him and there was no judgment against his property or his employee. He claims to have procured the 'whiskey broker' and to have paid the broker on behalf of another, but he does not claim to own or have any interest in the whisky, and he does not own or have any interest in the tractor and trailer. The corporate trucking company was not a party to these proceedings and Howard McCormack as the principal stockholder, director and managing officer of the corporation could not complain of an illegal search and seizure of the corporation's leased tractor and trailer or of the seizure of a cargo of whisky in which he had no interest. U. S. v. De Vasto, supra; State v. Morris, Mo.Sup., 279 S.W. 141, 143. Thus, the issues upon this appeal are plainly limited, in the first place, to another intervenor, Hal McCormack, who has appealed from the entire judgment.
The questions briefed and argued by the intervening appellant and the state are (a) whether the search and seizure of the whisky, without a search warrant, was unreasonable and consequently whether the motion to suppress should have been sustained (b) whether the court erred in overruling the intervenor's motion to dismiss and deny the supervisor's petition to declare the liquor contraband, and (c) whether the court erred in finding against Hal McCormack upon the merits of his intervening petition in which he claimed to be the innocent owner of the whisky and entitled to its possession. To further delimit the issues and problems of this appeal it may be noted that we are not concerned here with property 'contraband' in the sense that it may not be the subject of ownership. United States v. Sischo, D.C., 262 F. 1001. Under the statute any owner of the liquor innocent and ignorant of its illegal use may intervene and claim the property, V.A.M.S. Sec. 311.840, subd. 4; State ex rel. Wahl v. Riley, Mo.App., 276 S.W. 844, and we assume that he could also raise in this proceeding in rem the reasonableness and legality of the search and seizure. Cornelius, Search and Seizure, Sec. 427, p. 818. Missouri may reasonably regulate the transportation of liquor through the state and the Liquor Control Act, in the respects complained of, is not unconstitutional as an undue burden upon interstate commerce. Annotation 138 A.L.R. 1150; State v. Ward, supra; Duckworth v. Arkansas, 314 U.S. 390, 62 S.Ct. 311, 86 L.Ed. 294; Carter v. Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605. All the parties, the individual defendant who did not appeal and the one who has no right to appeal, as well as the intervenor, admit that they had not made application for a permit to transport the cargo of whisky through Missouri, had not paid the nominal license fee or posted bond, and, unlike the transporter in State v. Ward, supra, did not have the required permit and so there can be no question but that the liquor was being transported in violation of the act. A.V.M.S. Secs. 311.420, 311.440, 311.460, 311.830. Consequently we need not be concerned with the state's failure to properly plead the laws of Oklahoma and Nevada, and we are not confronted with the question of whether an intended shipment of liquor into Oklahoma in violation of its laws is an offense punishable in Missouri or a sufficient and appropriate reason for a forfeiture of the property under Missouri law. Duckworth v. Arkansas, 315 U.S., loc.cit. 392, 62 S.Ct., loc.cit. 312, 86 L.Ed., loc.cit. 296; 22 C.J.S., Criminal Law, Sec. 28, page 83; State v. Ward, supra.
But aside from these delimiting factors and the fact that this appeal concerns but one person, Hal McCormack, the questions involved are further simplified and precisely limited by the resolution of one determinative issue and that is whether Hal McCormack is in fact the owner of the whisky. If he is not in point of fact the owner of and has no interest in the whisky, as the court has found upon his intervening petition, he has no protective rights and could not, of course, complain of the fact that there had been an illegal search and seizure of the whisky or that it had been declared contraband and forfeited to the state at the instigation of the liquor supervisor. State v. Fenley, 309 Mo. 520, 275 S.W. 36; State v. Askew, 331 Mo. 684, 688, 56 S.W.2d 52, 54; State v. Morris, supra; Graham v. U. S., 4 Cir., 158 F.2d 236, 237; Graham v. U. S., 8 Cir., 15 F.2d 740; U. S. v. De Vasto, supra; 79 C.J.S., Searches and Seizures, Sec. 52, page 811.
The petition to declare the property contraband was filed on October 4, 1950. Rodgers, Burke and Howard McCormack filed their answers on the 1st day of December 1950, and on that date Hal McCormack of North Las Vegas, Nevada, doing business as 'Club Arrowhead,' filed an application for leave to intervene in the proceeding on the ground that 'he is now and at all times mentioned in said petition the owner of said liquor, which fact can shown and proved; * * *.' On January 9, 1951, Hal, a croupier by profession, filed his intervening petition in which he alleged that he was the bona fide purchaser and owner of the liquor, that it was consigned to him at his place of business, 'Club Arrowhead,' to be sole at retail, and that he was innocent and without knowledge of its being illegally transported through Missouri. V.A.M.S., Sec. 311,840, subds. 3, 4. He also alleged that the seizure of the liquor was without a search warrant, without probable cause and unreasonable, and that the Liquor Control Act, in authorizing a search and Seizure, violated Missouri's constitutional...
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