State v. Tunnell

Citation259 S.W. 128,302 Mo. 433
Decision Date11 February 1924
Docket NumberNo. 23759.,23759.
PartiesSTATE v. TUNNELL et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Gus Tunnell and others were convicted of a violation of the Liquor Law, and they appeal. Reversed and remanded.

G. S. Dugan and Seth V. Conrad, both of Marshfield, for appellants.

Jesse W. Barrett, Atty. Gen., and Allen May, Sp. Asst. Atty. Gen., for the State.

WHITE, J.

The appellants were convicted of violation of the Liquor Law, section 6588, R. S. 1919, as amended by the act of 1921 (Laws of 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 beam, 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 punischment 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 2 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, add the motion is overruled. Lohmeyer v. Cordage Co., 214 Mo. 685, 113 S. W. 1108; Strother v. Railroad, 274 Mo. 272, 203 S. W. 207.

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, art. 2, 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, (No. 23760) 259 S. W. 116, 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 It 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, art. 2 of the state Constitution. It has been held by this court in the case of Lowry v. Rainwater, 70 Mo. 152. 35 Am. Rep. 420, 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 defendants. Defendants Gus...

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48 cases
  • State v. Hepperman, 37944.
    • United States
    • United States State Supreme Court of Missouri
    • June 17, 1942
    ......Whether or not the evidence was unlawfully obtained was a question to be determined on the motion to suppress. [State v. Owens, 302 Mo. 348, 259 S.W. 100; 32 A.L.R. 383.] After the motion is overruled the defendant keeps the question alive by timely objection (State v. Tunnell, 302 Mo. 433, 259 S.W. 128; State v. Hefflin, 338 Mo. 236, 89 S.W. (2d) 938) but the court does not then interrupt the trial to pass on the legality of the search and seizure but only determines whether the evidence is competent and relevant. [State v. Owens, supra.] .         In her ......
  • State v. Park
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1929
    ......Art. 2, secs. 11, 23. Mo. Constitution; Secs. 4115, 4116, R.S. 1919; Laws 1923, p. 244; State v. Barrelli, 296 S.W. 413; State v. Owens, 302 Mo. 348; State v. Lock, 302 Mo. 400; State v. Tunnell, 302 Mo. 433; State v. Rebasti, 267 S.W. 858; State v. Reis, 268 S.W. 391; State v. Stogsdill, 297 S.W. 977. (a) The search warrant did not describe the place to be searched. (b) The search authorized was unreasonable as applied to the property attempted to be described. (c) Neither the application ......
  • State v. Richards, 32729.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1933
    ......56 C.J. 1213; State v. Naething, 300 S.W. 829; State v. Lock, 259 S.W. 121; State v. Hobbs, 279 S.W. 200; State v. McCowan. 56 S.W. (2d) 410; State v. Smith, 262 S.W. 65; State v. Hall, 265 S.W. 843; Atlanta Ent. v. Crawford, 22 Fed. (2d) 834; Garges v. State, 48 S.W. (2d) 625; State v. Tunnell, 259 S.W. 128. (d) Search was not incident to arrest and valid warrant was necessary, 56 C.J. 1200; State v. Williams, 14 S.W. (2d) 435; State v. Rebasti, 267 S.W. 858; State v. Grubbs, 289 S.W. 852; Marron v. United States. 48 Sup. Ct. 74, 275 U.S. 192; Agnello v. United States, 46 Sup. Ct. 4, 269 ......
  • State v. Richards
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1933
    ......Naething, 300 S.W. 829;. State v. Lock, 259 S.W. 121; State v. Hobbs, 279 S.W. 200; State v. McCowan, 56. S.W.2d 410; State v. Smith, 262 S.W. 65; State. v. Hall, 265 S.W. 843; Atlanta Ent. v. Crawford, 22 F.2d 834; Garges v. State, 48. S.W.2d 625; State v. Tunnell, 259 S.W. 128. (d). Search was not incident to arrest and valid warrant was. necessary. 56 C. J. 1200; State v. Williams, 14. S.W.2d 435; State v. Rebasti, 267 S.W. 858;. State v. Grubbs, 289 S.W. 852; Marron v. United. States, 48 S.Ct. 74, 275 U.S. 192; Agnello v. United. States, ......
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