The State v. Cobb

• Decision Date: 05 June 1925
• Docket Number: 26176
• Citation: 273 S.W. 736,309 Mo. 89
• Parties: THE STATE v. HENRY K. COBB, Appellant
• Court: Missouri Supreme Court

273 S.W. 736

309 Mo. 89

THE STATE v. HENRY K. COBB, Appellant

No. 26176

Supreme Court of Missouri

June 5, 1925

Appeal from Howell Circuit Court; Hon. E. P. Dorris, Judge.

Affirmed.

J L. Van Wormer for appellant.

(1) The application or so-called petition of the prosecuting attorney does not comply with Section 11, Article 2, of the Constitution of the State or Section 25, page 244, Laws 1923 as no facts are set forth in said application, upon which same is based, describing the place to be searched and the things to be seized as nearly as may be. As there was nothing upon which to base the alleged search warrant it was a nullity, and should have been quashed and the evidence suppressed. See Laws 1923, p. 244, sec. 25; State v Lock, 259 S.W. 122; State v. Smith, 262 S.W. 65. (a) There were no facts contained in said application, or alleged facts from any other source, upon which the justice of the peace could have based a judicial finding that there was probable cause for the issuance of the alleged search warrant. Consequently said search was illegal and void, and all evidence gained thereby should have been suppressed. State v. Lock, 259 S.W. 122; State v. Tunnell, 259 S.W. 129; Laws 1923, p. 244, sec. 25; State v. Smith, 262 S.W. 65; Lakes v. Commonwealth, 200 Ky. 266, 254 S.W. 908. (b) No search warrant shall be issued unless the judge has first been furnished with facts under oath -- not suspicions, beliefs or surmises -- but facts which tend to establish the necessary legal conclusion and tend to establish probable cause for believing that the legal conclusion is right. Veeder v. United States, 252 F. 414, 164 C. C. A. 338; State v. Lock, 259 S.W. 122; State v. Smith, 262 S.W. 65; State v. Peterson, 19 P. 342; 13 A. L. R. 1287. (c) There was no finding of probable cause by the justice. The finding of the legal conclusion or of probable cause, from the exhibited facts, is a judicial finding that cannot be delegated and should find expression in the search warrant. United States v. Tureand, 20 F. 624; State v. Lock, supra. (d) There was no statement of facts whatever in the search warrant. The search warrant itself should contain facts, so that the accused may know whether his rights are in jeopardy. The proceedings were insufficient and the search warrant illegal and void. State v. Lock, 259 S.W. 122. (e) The search warrant did not describe with reasonable particularity the place to be searched as provided by Sec. 11, Art. 2, Missouri Constitution, and Sec. 25, page 244, Laws 1923. It is plain that the Constitution permits a search to be made only when the search warrant describes the place to be searched with particularity. State v. Lock, 259 S.W. 124; Smith v. McDuffee, 72 Ore. 276. (f) There was no consent such as the law recognizes on the part of the defendant. When told by the officer that he had a search warrant, the defendant merely said all right go ahead and search. This was simply submitting peaceably to the implied authority and coercion of the sheriff and his assistant. There was no waiver of his constitutional rights in this instant case. State v. Lock, 259 S.W. 124; Dukes v. United States, 275 F. 142; Gouled v. United States, 225 U.S. 298, 65 L.Ed. 647; State v. Owens, 259 S.W. 100. (g) Searches and seizures are unreasonable that do not follow the Constitution; and a search warrant issued without probable cause does not follow it and is void. State v. Lock, 259 S.W. 124; State v. Owens, 259 S.W. 101. (2) It was a plain violation of defendant's constitutional rights to permit the State, over the objection of defendant, to exhibit to the jury and introduce in evidence the alleged jars of wine and other articles seized by the officers in the execution of the illegal search warrant. State v. Owens, 259 S.W. 102; State v. Lock, 259 S.W. 124; Youman v. Commonwealth, 189 Ky. 165, 224 S.W. 866; 13 A. L. R. 1303; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, L. R. A. 1915 B, 834, Ann. Cas. 1915 C, 1177. (3) The prosecuting attorney admitted when placed on the stand by the defendant in support of his motion to quash the search warrant and suppress the evidence, that his statement contained in his application for a search warrant, that defendant was in possession of intoxicating liquors, was based on "reports" made to him by others not named, and there was no other evidence before the justice of the peace. To justify the issuance of a search warrant there must be an affidavit filed based on something more than rumor or hearsay, or evidence must be taken before the justice issuing the warrant. State v. Miller, 266 S.W. 1024; State v. Smith, 262 S.W. 65; State v. Tunnell, 259 S.W. 129; Arnold v. Commonwealth, 267 S.W. 190; Maynard v. Commonwealth, 201 Ky. 593, 257 S.W. 1024.

Robert W. Otto, Attorney-General, and James A. Potter, Special Assistant Attorney-General, for respondent.

(1) The evidence offered, assuming that it was admissible at all, was entirely sufficient to carry the case to the jury and to justify appellant's conviction. (2) The court committed no error in overruling the motion to suppress the evidence. The Constitution of Missouri does not prohibit searches without a warrant. It does prohibit unreasonable searches either with or without a warrant. The evidence offered in support of the motion to suppress the evidence does not show that any of the evidence in the possession of the officers was procured by an unreasonable search of the appellant's home. The only liquor referred to at all in this evidence was a one-half gallon jar found in appellant's wagon. The evidence does not show where the wagon was located nor whether it was within the curtilage of appellant's home. It was the duty of the appellant to offer clear and convincing testimony to show that the wagon was within the curtilage, otherwise the search of the wagon by an officer was not an unreasonable search. Hutchins v. State, 59 S.E. 848; State v. Taylor, 42 Me. 329; Commonwealth v. Barney, 64 Mass. 482; Commonwealth v. Intoxicating Liquors in Vessels, 3 N.E. 5; Cook v. State, 83 Ala. 63; Curkendall v. People, 36 Mich. 309; People v. Chiagles, 142 N.E. 583; Francis v. State, 221 P. 785; Angello v. United States, 290 F. 671; United States v. McBride, 287 F. 214; McClannan v. State, 116 S.E. 495. (3) Even though the evidence offered on the motion to suppress could be held to show that the wagon was within the curtilage the appellant waived his constitutional right by telling the officers to go ahead and search. State v. Allen, 251 S.W. 69; Meno v. State, 142 N.E. 382. (4) The evidence in support of the motion to suppress does not show that the wine found in the wagon was not visible without a search. If the liquor in the wagon was visible without a search no search warrant was necessary. Ferrell v. Commonwealth, 264 S.W. 1078. (5) The wine found in the wagon was not claimed by appellant and he denied any knowledge of its presence in the wagon or his ownership therein. In the absence of proof that the wagon was on his premises at the time he cannot claim the protection of the statute. Ragland v. Commonwealth, 265 S.W. 15.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On September 27, 1924, the Prosecuting Attorney of Howell County, Missouri, filed in the circuit court of said county a verified information, which, without caption and verification, reads as follows:

"B. L. Rinehart, Prosecuting Attorney within and for the County of Howell, State of Missouri, informs the court that one Henry K. Cobb, did on or about the 12th day of July, 1924, willfully and unlawfully manufacture, brew and have in his possession certain intoxicating liquors, to-wit: 15 gallons of wine, against the peace and dignity of the State.

"B. L. Rinehart, Prosecuting Attorney."

The case was tried before a jury, and on October 7, 1924, the following verdict was returned:

"We, the jury in the above entitled cause find the defendant Henry K. Cobb, guilty of having and possessing intoxicating liquor, to-wit, wine, as charged in the information, and we do assess his punishment at $ 100 fine." Thereafter, in due time, defendant filed motions for a new trial and in arrest of judgment, both of which were overruled. Thereafter judgment was rendered in conformity to the verdict aforesaid, and an appeal was granted defendant to this court.

On July 9, 1924, the Prosecuting Attorney of Howell County, Missouri, prepared a verified statement, and filed the same with George Halstead, a justice of the peace in said county. It reads as follows:

"To George Halstead, Justice of the Peace, Howell Township. I. B. L. Rinehart, Prosecuting Attorney duly elected, commissioned, sworn, qualified, installed and acting as such in and for the County of Howell, in the State of Missouri, state that in the building known as residence and upon the premises of one K. Cobb in Howell County, Missouri, certain intoxicating liquors are being manufactured, sold and possessed, and that the residence of said K. Cobb is being used as a place of public resort, contrary to law," etc.

The search warrant complained of reads as follows:

" SEARCH WARRANT (LIQUOR CASES)

"STATE OF MISSOURI

ss:

"COUNTY OF HOWELL

ss:

"The State of Missouri to the Sheriff of Howell County, Greetings:

"WHEREAS B. L. Rinehart, Prosecuting Attorney of Howell County, Missouri, on the 9th day of July, 1924, filed a statement in my office verified by his oath, in which he says that he verily believes that certain intoxicating liquors are being manufactured, sold and possessed, and that the residence of K. Cobb is being used as a place of public resort, in the building known as dwelling house of K. Cobb, in Howell County, Missouri, contrary to law.

"This is therefore to command you, in the name of the State of...