State v. Windsor

• Decision Date: 03 January 1927
• Docket Number: No. 15796.,15796.
• Citation: 289 S.W. 663
• Parties: STATE v. WINDSOR.
• Court: Missouri Court of Appeals

289 S.W. 663

STATE v. WINDSOR.

No. 15796.

Kansas City Court of Appeals. Missouri.

January 3, 1927.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

"Not to be officially published."

Lawrence Windsor was convicted of possessing a pint of corn whisky, and he appeals. Reversed and remanded.

W. V. Draffen, of Boonville, for appellant. John H. Windsor, of Boonville, for the State.

BLAND, J.

Defendant was convicted of having in his possession a pint of corn whisky, and his punishment assessed at a fine of $200. He has appealed.

The facts show that on the 7th day of September, 1924, defendant and one John Mischler, Jr., were riding in a Ford automobile on their road toward Boonville and about 10 miles therefrom when they were overtaken by a rain storm. The car skidded off the road into a ditch, where it remained until the next day. During the night defendant and Mischler became intoxicated and defendant was seen drinking from a white jug. On the morning of the 8th a search warrant to search the automobile was procured by the prosecuting attorney and early that morning the sheriff and his deputy proceeded to the automobile and there found defendant and said Mischler. The only evidence of any intoxicating liquor present was that contained in the jug mentioned supra, which the testimony shows contained corn whisky. On motion of defendant the search warrant was quashed by the court and the evidence secured by the officers was suppressed. Notwithstanding this, on the trial the court permitted the officers to testify concerning the presence of the jug of whisky and the jug was exhibited to the jury, all over the objection of the defendant. Defendant now claims that this was error. The jug of whisky was the only evidence mentioned in the motion to suppress.

The state has not favored us with a brief, but apparently the court permitted the introduction of this testimony for the reason that at the trial it was shown that the jug was not in the car when the officers arrived, but was sitting in the road about six feet from the car. It may be that a search warrant was not necessary for the purpose of obtaining this evidence if, as a matter of fact, the jug was not in the automobile, and we need not say whether such evidence ordinarily would be inadmissible although the search warrant was void; but this was the only evidence procured by the officers when they executed the search warrant, and, as the court suppressed this evidence, it was not...