State v. Tunnell
| Decision Date | 11 February 1924 |
| Docket Number | 23759 |
| Parties | THE STATE v. GUS TUNNELL, DOROTHA TUNNELL and SAMMIE TUNNELL, Appellants |
| Court | Missouri Supreme Court |
Appeal from Webster Circuit Court; Hon. C. H. Skinker Judge.
Reversed and remanded.
G Purd Hays for appellants.
(1) The court should have sustained the motion to quash the search warrant and to suppress the testimony. Laws 1921, p. 416 sec. 6595. (2) Said search warrant is insufficient. It does not attempt to describe the premises or residence of the defendants to be searched. The evidence is that the defendants had lived there a long time, and a complete description of their premises could have been readily obtained. Defendants were raided in the nighttime, which is contrary to law. Mo. Constitution, art. 2, secs. 11 and 23; Fourth and Fifth Amendments of Constitution of United States; Secs. 4115, 4116, R. S. 1919; Youman v. Commonwealth, 224 S.W. 860; State ex rel. American Mfg. Co. v. Anderson, 194 S.W. 268; Hughes v. State, 238 S.W. 588. (3) The court erred in overruling the demurrer at the close of the case, and especially as to Anna Lock, wife of defendant, William Lock. The whole evidence is that she did what she did, if anything, under the direction of her husband. State v. Miller, 162 Mo. 253.
Jesse W. Barrett, Attorney-General, and Harry C. Willson, Special Assistant Attorney-General, for respondent.
(1) The affidavit for the search warrant named necessary exceptions to the search of a private dwelling, and the warrant, was legally issued. Sec. 6595, R. S. 1919, as amended Laws 1921, pp. 416, 417. (a) The description of the place to be searched as set out in the warrant is sufficient. Sec. 11, Art. II, Mo. Constitution; Dwinnels v. Boynton, 85 Mass. 310; Wright v. Dressel, 140 Mass. 147; Metcalf v. Weed, 66 N.H. 176; United States v. Borkowski, 268 F. 411. (b) The Fourth and Fifth Amendments of the Constitution of the United States contain no restrictions on the powers of the State, but were intended to operate solely on the Federal government. Brown v. New Jersey, 175 U.S. 172; United States v. Cruikshank, 92 U.S. 542; State v. Gordon, 268 Mo. 713. (c) Secs. 4115 and 4116, R. S. 1919, apply to complaints that personal property has been stolen or embezzled. (2) The court did not commit error in overruling the demurrer to the evidence and in submitting the case to the jury. The record discloses that there is substantial evidence upon which to submit the case to the jury. State v. Prunty, 276 Mo. 371; State v. Field, 234 Mo. 627; State v. Hascall, 226 S.W. 21. Where there is sufficient evidence to support the verdict, this court will not interfere. State v. Long, 199 Mo. 207. (3) Permitting the sheriff and his deputies to testify as to what they found on Lock's premises was not error. State v. Sharpless, 212 Mo. 176; State v. Pomeroy, 130 Mo. 489.
The appellants were convicted of violation of the liquor law, Section 6588, Revised Statutes 1919, as amended by the Act of 1921, Laws 1921, p. 414, et seq. The information is in three counts.
The first count charged the defendants with having in their possession "one still, doubler, worm, worm tub, mash tub, fermenting used and for use in the manufacture of intoxicating liquor."
The second count charged the defendants with the manufacture of intoxicating liquor.
The third count charged the defendants with having in their possession intoxicating liquor.
The Sheriff of Webster County, with a search warrant issued by the Clerk of the Circuit Court of that county (not a justice of the peace, as respondent states), searched the premises of defendants and found the articles mentioned in the information. On a trial the jury found the defendants guilty as charged in the first count, and assessed their punishment at a fine of two hundred dollars each; found the defendants guilty as charged in the third count and assessed their punishment at a fine of two hundred dollars each; and found them not guilty on the second count of the information. The effect of the verdict was that the defendants possessed apparatus for manufacturing intoxicating liquor and had such liquor in their possession, but did not manufacture it. They appealed from the judgment.
I. The State filed a motion in this court asking an order transferring the case to the Springfield Court of Appeals on the ground that this court had no jurisdiction, it being a misdemeanor case and no constitutional question having been properly raised.
At the January term, 1922, before the trial, the appellants filed in the Circuit Court of Webster County a motion to quash the search warrant mentioned above and suppress the evidence obtained by the sheriff in the execution of it, on the ground that the search warrant was illegal and void and contrary to the Fourth and Fifth Amendments of the Federal Constitution, and Sections 11 and 23 of Article II of the Constitution of Missouri.
The constitutional question was thus properly raised by the defendant at the first opportunity. The information on its face does not suggest that the constitutional question could be raised by a demurrer or other motion more appropriate than the one filed by the defendant. This court therefore has jurisdiction and the motion is overruled. [Lohmeyer v. Cordage Co., 214 Mo. 685; Strother v. Railroad, 274 Mo. 272.]
II. The error presented by the appellants upon which they rely for reversal is this:
It is claimed that the search warrant issued by the circuit clerk was illegal and void and did not authorize a search and, in consequence of that, the evidence discovered by the sheriff in executing the search warrant was inadmissible against the defendants.
The search warrant was unauthorized for several reasons. It could not issue except upon probable cause as provided in Section 11, Article II, of the Constitution of Missouri. No facts were stated in the affidavit filed by the prosecuting attorney which would justify the issuance of the warrant. This matter was exhaustively and ably elaborated by Davis, C., in case of State v. Lock, ante page 400, decided at the present term of this court. Another reason why the search warrant was void was that Section 6595, under which it was issued, does not authorize a search warrant. Besides, the circuit clerk being a mere ministerial officer could not issue it in any event, because such warrant can be issued only by a court upon a judicial investigation. [24 R. C. L. p. 706.]
The appellants do not question the constitutionality of that statute. They only claim that the search warrant was issued in violation of Section 11, Article II, of the State Constitution. It has been held by this court in the case of Lowry v. Rainwater, 70 Mo. 152, that a statute relating to gambling and gambling devices, very similar in terms to Section 6595, was unconstitutional because it authorized a search and seizure without any judicial ascertainment of the facts in regard to the ownership of the property and the right to its possession.
III. The question then is presented whether the evidence discovered by the sheriff in the illegal search was properly admitted in evidence.
The evidence showed that both the liquor and the apparatus were found in the dwelling house occupied by the defendants, and also in an abandoned dwelling house on the premises of the...
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