State v. Vilott

• Decision Date: 31 December 1927
• Docket Number: 27803
• Citation: 1 S.W.2d 827
• Parties: STATE v. VILOTT
• Court: Missouri Supreme Court

1 S.W.2d 827

STATE v. VILOTT

No. 27803

Supreme Court of Missouri, Second Division

December 31, 1927

Motion for Rehearing Overruled January 18, 1928.

Frank D. Rader, James M. Rader, and Harry L. Donnelly, all of Kansas City, for appellant.

North T. Gentry, Atty. Gen., and H. O. Harrawood, Sp. Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

An information was filed in the circuit court of Jackson county on December 23, 1925, charging that the defendant, on December 21, 1925, at said county did willfully and unlawfully possess and have in his possession certain intoxicating liquors, to wit, one pint of corn whisky and five one-half pints corn whisky, containing one-half of 1 per cent. and more of alcohol by volume, contrary to the form of the statute, etc. He was tried to a jury on February 19 1926. He stood on his demurrer to the evidence, and the jury by their verdict found him guilty of unlawful possession of intoxicating liquor as charged in the information and assessed his punishment at imprisonment for one year in the county jail and a fine of $ 500. From a sentence in accordance with the verdict, an appeal was allowed to this court because a constitutional question is involved. Appellant assigns six errors.

1.After the information was filed, but on the same day, the prosecuting attorney filed another information based on section 8 of an act approved April 3, 1923 (Laws 1923, p 236), relative to the concealment of any form of intoxicating liquor. It was conceded this information charged the unlawful concealment of the identical liquor mentioned in the first information. The defendant moved the court to quash the information for the reason that under section 3895, R. S. 1919, 'the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.'

The first information is based on section 6588, Laws 1921, p. 414, and charges that the defendant was unlawfully possessed of intoxicating liquor, while the second information charges the unlawful concealment of intoxicating liquor, contrary to the provisions of a different statute. The state elected to try the defendant on the first information. The court did not err in overruling the motion to quash the first information. According to the sections of the statute cited, they are different offenses.

2.Before entering upon the trial of the cause the defendant filed a motion to quash the search warrant issued on December 21, 1925, praying 'that all evidence concerning the same be suppressed.'

It will not be necessary to set out the motion at length. It avers that on December 21, 1925, the defendant occupied the premises at 3318 East Eighteenth street, Kansas City, Mo. The third assignment of error is as follows:

'The search warrant in this case was issued by the justice of the peace without probable cause and without any showing of fact before the justice of the peace on which to find probable cause, in violation of the defendant's rights and in violation of the Fourth Amendment to the Constitution of the United States and in violation of section 11 of article 2 of the Constitution of the state of Missouri and in violation of section 25 of the Laws of Missouri 1923, p. 244, and the trial court erred in admitting evidence obtained under said search warrant, and the court erred in not permitting defendant to show by oral testimony that application for search warrant was not made upon the personal knowledge of any facts, nor were any facts stated therein, which the defendant offered to show by the offer of proof.'

The guaranty against unreasonable searches and seizures provided in the Fourth and Fifth Amendments applies only to federal officers and agents. State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A. L. R. 383.

The application for the search warrant was made and sworn to by E. S. Carroll, assistant prosecuting attorney. It states that in the hereinafter described premises in said county and state, to wit, 3318 East Eighteenth street, a one-story brick building, a soft drink parlor, in Kansas City, Jackson county, Mo., intoxicating liquor is being unlawfully manufactured, sold, stored, and kept. It prays that a search warrant be issued, directed to the sheriff of said county or to the chief of police of the city of Kansas City, to search said building, etc.

It is contended there was no showing of fact before the justice of the peace on which to find probable cause, and that the warrant was issued in violation of the defendant's pleaded constitutional rights; that the statement is a mere conclusion and not the statement of facts from which the justice could find probable cause; hence the warrant is a nullity despite the fact conceded by the motion that the defendant was found in the unlawful possession of intoxicating liquor as charged in the application. If the charge was false and the defendant was not in the unlawful possession of intoxicating liquor and he had sued for damages for malicious prosecution, we would have an entirely different case. But when it is conceded that the charge was true, it seems to me, the height of effrontery for the defendant to contend the evidence should be suppressed because, forsooth, the state may not have made a full and complete showing of probable cause for the issuance of the search warrant.

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A. L. R. 790, it was held that an officer had the right without a search warrant to stop an automobile on a public highway and search it if he had probable cause, based on information, to believe it contained contraband liquor; in other words, probable cause, based on information, took the place of a search warrant. 39 A. L. R. 790, Syl. 12, reads:

'Under the provision of the National Prohibition Law [27 USCA] authorizing an officer to seize liquor when he discovers any person in the act of transporting it in violation of law, it is not necessary that he learn of the unlawful transportation by the present evidence of his senses, but he may act on identification of a car which he has been previously informed is engaged in such transportation.'

On page 798 (267 U.S. 149, 45 S.Ct. 283), Chief Justice Taft said:

'On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.'

And (267 U.S. 162, 45 S.Ct. 288) on page 805:

'In the light of these authorities, and what is shown by this record, it is clear the officers here had justification for the search and seizure. This is to say, that the facts and circumstances within their knowledge, and of which they had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched.

'Counsel finally argue that the defendants should be permitted to escape the effect of the conviction because the court refused, on motion, to deliver them the liquor when, as they say, the evidence adduced on the motion was much less than that shown on the trial, and did not show probable cause. The record does not make it clear what evidence was produced in support of or against the motion. But, apart from this, we think the point is without...