The State v. Catalino

• Decision Date: 09 April 1927
• Docket Number: 27542
• Citation: 295 S.W. 568,316 Mo. 1152
• Parties: The State v. Pete Catalino, Appellant
• Court: Missouri Supreme Court

295 S.W. 568

316 Mo. 1152

The State v. Pete Catalino, Appellant

No. 27542

Supreme Court of Missouri

April 9, 1927

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Affirmed.

James Daleo and W. G. Lynch for appellant.

(1) An assistant prosecuting attorney is not empowered by the prohibitory laws of this State to make application for a search warrant. Sec. 25, Laws 1923, p. 244. (2) Before a justice of the peace, or any other officer or court, can issue a search warrant, under the prohibitory laws of this State, it must satisfactorily appear "either from the facts as set forth in said petition, or from evidence heard thereon, that there is probable cause to believe that intoxicating liquor is being unlawfully manufactured and sold, stored or kept," etc., at the place described. Sec. 25, p. 244, Laws 1923; State v. James, 274 S.W 111. (3) If, however, the petition does not state sufficient facts for that purpose, then the facts may be shown by evidence presented, sufficient to satisfy the court or justice to whom the petition is presented that probable cause exists. State v. James, 274 S.W. 111. (4) Before a search warrant can be issued, probable cause for its issuance must be shown by facts and circumstances reduced to writing and supported by the oath or affirmation of witnesses. Sec 11, Art. II, Constitution of Missouri; Laws 1923, p. 244, sec. 25. (5) Probable cause must be established by competent evidence and not by conclusions, beliefs, rumors or guesswork. United States v. Tureaud, 20 F. 623; United States v. Polite, 35 F. 58; In re Dana, 68 F. 894; Giles v. United States, 284 F. 208; United States v. Illing, 288 F. 931; United States v. Kaplan, 286 F. 963; Central Consumers Co. v. James, 278 F. 249; Veeder v. United States, 252 F. 414; United States v. Patitto, 267 F. 603; Wagner v. United States, 8 Fed (2d.) 581; People v. Effelberg, 220 Mich. 528; In re Liquors, 197 N.Y.S. 758; State v. Locke, 259 S.W. 116; United States v. De Loic, 2 F.2d 377; Cornelius on Search and Seizure, 285 -- 295; Lochnane v. United States, 2 F.2d 427; Atlantic Food Products Co. v. McClure, 288 F. 982; Lepschutz v. Davis, 288 F. 974; United States v. Carlson, 292 F. 463. (6) It must appear from the affidavit or application for the search warrant that the applicant or affiant has personal knowledge of the facts of which he deposes. Cases last cited. (7) The search warrant must describe the place to be searched and the thing or things to be seized as nearly as may be. Laws 1923, p. 244, sec. 25; Section 11, Articles II, Constitution of Missouri; State v. Locke, 259 S.W. 123; State v. Perkins, 285 S.W. 1024; Cornelius on Search and Seizure, 312 to 323; Smith v. McDuffee, 72 Ore. 276, 142 P. 558. (8) The name of the accused or the owner of the property should be given in the application and search warrant, if known, and if not known, the fact should be stated. State v. Perkins, 285 S.W. 1024; United States v. Barkowski, 268 F. 408; United States v. Kaplan, 286 F. 963; Cornelius on Search and Seizure, 312 to 325; Smith v. McDuffee, 72 Ore. 276, 142 P. 558. (9) When appellant filed his application for a change of venue, the then statute provided what should be done with the case. Sec. 9, p. 222, Laws 1921; State ex rel. v. Fort, 109 S.W. 738; Coffey v. Carthage, 200 Mo. 616, 98 S.W. 526. (10) Instruction 1 was not based upon the evidence and should not have been given. State v. Frazier, 269 S.W. 410. (11) The verdict should have shown what articles the jury found defendant was in possession of. State v. Frazier, 269 S.W. 410.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The statute authorizes the prosecuting attorney to make application for a search warrant. Under such statute the assistant prosecuting attorney of Jackson County has authority to act. Sec. 11044, R. S. 1919; State v. White, 251 Mo. 182. (2) The defendant failed to "set forth in detail and with particularity the specific grounds" on which he bases his allegation that the search warrant was wrongfully and illegally obtained in violation of the constitution. Sec. 4079, Laws 1923, p. 198. (3) Appellant limits his assignments of error to four. There is no merit in any of the assignments. But, however that may be, this court cannot consider them because they have not been properly preserved in the motion for a new trial. Sec. 4079, Laws 1925, p. 198. (4) The court did not err in calling in a judge from another division to try the cause. Ib. (5) It is clearly and definitely settled by this court that not one of the foregoing assignments is sufficiently preserved in the motion for a new trial. Sec. 4079, Laws 1925, p. 198; State v. Standifer, 289 S.W. 856.

OPINION

Walker, J.

The appellant was charged by information in the Circuit Court of Jackson County in two counts; in one with the unlawful possession of a still, worm, mash tub and fermenting tub, fit for use in the production of intoxicating liquor; and in the other with the unlawful possession of intoxicating liquor, to-wit, forty-five gallons of corn whiskey, containing more than one-half of one per cent of alcohol. Each of these counts charges a misdemeanor. Upon a trial to a jury he was convicted and his punishment, under each count, assessed at a fine of $ 1,000 and one year's imprisonment in the county jail. From this judgment he appeals.

Before the case was tried the appellant filed a motion to quash the search warrant and suppress the evidence on the ground that the warrant was illegally issued in violation of the Constitution. The court heard the evidence on this motion and overruled it. The constitutional question was preserved in the motion for a new trial.

Upon the trial the whiskey and the still, doubler, worm, and mash tubs, which had been taken from the defendant's residence, were identified by the officers and introduced in evidence before the jury. The written statement of the defendant was introduced in evidence, in which he admitted that the still and the whiskey belonged to him and that he had manufactured it at his residence and had intended to sell it. He did not testify nor offer any testimony.

I. It is contended that an assistant prosecuting attorney is not authorized to make application for a search warrant. While the language of the statute is limited in the granting of authority to officials to petition for a search warrant to the Attorney General and the prosecuting attorney of any county (Laws 1923, p. 244), an assistant prosecuting attorney, clothed by the law of his appointment with power to assist the prosecuting attorney generally in the discharge of the duties of his office, as at bar (Sec. 11044, R. S. 1919), is authorized, as a legitimate part of such duties, to petition for a search warrant. The rule that statutes concerning the issuance of search warrants should be strictly construed does not militate against the correctness of this conclusion. The right to apply for the warrant being one of the prescribed duties of the prosecuting attorney his assistance by virtue of his appointment is invested with like power.

II. The petition for the warrant definitely describes the place to be searched and the things therein to be seized, verified by the oath of the officer applying for the same. This complies with the requirements of the statute (Sec. 25, Laws 1923, p. 244; State v. Richardson, 316 Mo. 1014), and furnished a sufficient basis for the issuance of the warrant.

III. From the facts set forth in the verified petition and the showing thereby and thereupon made, it was found by the justice of the peace that there was probable cause to believe that the laws of the State in regard to the prohibition of intoxicating liquors had been violated and thereupon the warrant was issued. Not only therefore did it appear from the petition but from evidence heard thereon that cause existed for the issuance of the warrant in conformity with the requirements of the statute (Sec. 25, supra). Where the facts have been thus established the justice of the peace was authorized in determining that probable cause existed for his action. [State v. Hall, 279 S.W. l. c. 106 and cases; State v. Richardson, 316 Mo. 1014.]

IV. The place to be searched was described with such particularity as to readily enable the officer to locate it and the statute in this regard was complied with. [Bragg v. State, 290 S.W. 1; United States v. Harvey, 298 F. 106; Smith v. McDuffee, 72 Ore. 276; Ann. Cas. 1916D, 947 and note.] Ordinarily the description of the property by a street and number is sufficient, provided such street and number covers only a single place of business or an apartment or a residence. [United States v. Friedman, 267 F. 857; 24 R. C. L. 712, 713, secs. 16, 17, and notes; 23 Standard Ency. Procedure, p. 385.]

V. The statute (Sec. 25, supra) provides that the application for the search warrant shall be "by petition, setting forth substantially the facts upon which the same is based, describing the place to be searched and the thing or things to be seized as nearly as may be, which petition shall be verified by the oath of the officer filing the same." It is not necessary to the validity of the warrant that the name of the accused or the owner of the premises to be searched be stated in the application and the warrant. Cases in other jurisdictions holding to the contrary are under statutes requiring the name of the owner to be stated in warrants for the search of premises and the seizure of things found therein.

Numerous cases have arisen in Federal jurisdictions and in other states in which the validity of the proceedings was challenged on account of a failure to name the owner in the warrant when the purpose of the latter was simply...