The State v. Barrelli

• Citation: 296 S.W. 413,317 Mo. 461
• Decision Date: 23 June 1927
• Docket Number: 27805
• Parties: The State v. Tony Barrelli, Appellant
• Court: Missouri Supreme Court

296 S.W. 413

317 Mo. 461

The State v. Tony Barrelli, Appellant

No. 27805

Supreme Court of Missouri

June 23, 1927

Appeal from Jackson Circuit Court; Hon. Thad B. Landon Judge.

Reversed and remanded.

Wilbur F. Hall, Charles P. Dallam and Bruce Barnett for appellant.

(1) The search warrant was void. (a) The constitutional questions were raised in the trial court by motion to quash the search warrant and to suppress all evidence thereby obtained renewed in the motion for new trial, and presented in formal manner in this court by our assignment of error. Missouri Constitution, Art. II, Sec. 11. (b) The warrant described the place to be searched as a two-story brick building at 315 Cherry Street, which building was in two parts separately occupied by two distinct persons, i. e., the upper story was the dwelling place of Antonio LaSalle, the owner of the building, and the lower story was occupied by defendant as tenant of the owner for business purposes. Such a building constitutes two separate places and such a warrant is entirely void. United States v. Innelli, 286 F. 731; Commonwealth v. Certain Intoxicating Liquors, 116 Mass. 342; Commonwealth v. Certain Intoxicating Liquors, 110 Mass. 499; Nestor v. Commonwealth, 202 Ky. 748, 261 S.W. 270. (2) The introduction in evidence of seventy-four bottles of whiskey found in a place not in defendant's possession, i. e., in a shed constituting part of a dwelling house separate and apart from the building in defendant's possession, constituted error most prejudicial to defendant.

North T. Gentry, Attorney-General, and H. O. Harrawood, Special Assistant Attorney-General, for respondent.

The motion to quash the search warrant was properly overruled. The search warrant specifically mentioned sheds, outhouses etc., in the rear of the two-story brick building. The question of whether it was a part of the premises was for the jury. There was strong circumstantial evidence that the liquor in the shed was used to supply the soft-drink parlor. State v. Bennett, 270 S.W. 295; State v. Lunfrunk, 279 S.W. 733; United States v. Lepper, 288 F. 136; United States v. Friedman, 267 F. 856.

OPINION

White, P.J.

The defendant appeals from a judgment of the Circuit Court of Jackson County, following a verdict by a jury finding him guilty of unlawful possession of intoxicating liquor. His punishment was assessed at a fine of two hundred dollars and one year in the county jail.

On March 25, 1926, a sergeant of police and other officers, armed with a search warrant, searched a soft-drink parlor operated by the defendant at 315 Cherry Street, Kansas City, Missouri, and found under the bar two pint bottles, one of which was filled and one partly filled with red liquor. It was called corn whiskey. The officer also found, in what is called a shed in the rear of the building, twenty-four pints of red corn whiskey and five quarts of wine. This was the evidence upon which the defendant was found guilty.

The defendant before the trial filed a motion to quash the search warrant, thereby raising a constitutional question which gave this court jurisdiction of the appeal.

Several alleged infirmities appeared in the search warrant, only one of which we need to consider. In the application upon which it was ordered and in the search warrant the description of the premises is as follows: "A two-story brick building, the basement beneath the same and all structures, barns, sheds, garages, outhouses in the rear of the same and all buildings located in and upon the premises at 315 Cherry Street, Kansas City, Missouri." The warrant recited that intoxicating liquor was being unlawfully manufactured, sold, stored and kept there, and other particulars relating to its manufacture. On the hearing of the appellant's motion to quash the search warrant he offered evidence to show that the building at 315 Cherry Street was a two-story brick building with a basement; that he, the defendant, was a tenant, occupying the first floor as a soft-drink parlor and he had a part of the basement where he stored coal for use in his place of business. The owner of the building, one Antonio LaSalle, lived upstairs, occupying the second floor and all the basement except the defendant's coal bin. In the rear was a dwelling occupied by a Mexican. It was on the same lot with the two-story brick building. The place where the twenty-four bottles of liquor were found, said to be a shed, is not clearly described. On the trial of the case the two or three officers who made the raid were confused and disagreed somewhat about its location. It appeared from the evidence that it was under a stairway leading to the dwelling house in the rear, the ground at that point being below the surface of the street. 315 Cherry Street is on a corner; Fourth Street runs along the side of the building, and from Fourth Street is the approach to the dwelling house in the rear. The defendant disclaimed any knowledge of the liquor found in the shed or control of the premises where it was found. The description of the premises includes all the brick building and all the structures at that number which would include also the dwelling house.

I. Section 11, Article II, of the Constitution, relating to search warrants provides...