The State v. Fenley

• Citation: 275 S.W. 41,309 Mo. 534
• Decision Date: 14 July 1925
• Docket Number: 24194
• Parties: THE STATE v. J. B. FENLEY, Appellant
• Court: United States State Supreme Court of Missouri

275 S.W. 41

309 Mo. 534

THE STATE v. J. B. FENLEY, Appellant

No. 24194

Supreme Court of Missouri

July 14, 1925

Appeal from Callaway Circuit Court; Hon. David H. Harris Judge.

Reversed and remanded.

Nick T Cave and Emil P. Rosenberger for appellant.

(1) The indictment is fatally defective: (a) Words of a statute which are descriptive of an offense as part of the statutory definition thereof cannot be omitted from an indictment or information thereunder without rendering the same defective. State v. Viviano, 206 S.W. 235; State v Miller, 132 Mo. 297; State v. Hesseltine, 130 Mo. 468. (b) It fails to follow the language of the statute. Every fact material to the offense charged must be alleged in the indictment, and nothing material can be taken by intendment or implication. State v. Hall, 130 Mo.App. 170. (c) It fails to charge the sale was unlawfully made, as is required in careful criminal pleading. (d) It should have alleged that the defendant transported the alleged liquor and not that the transportation was made by and through an agent, because all participants in the commission of a misdemeanor are principals. State v. McLain, 92 Mo.App. 456; Richardson v. United States, 181 F. 5; Bowles v. State, 127 P. 888; Loeb v. State, 6 Ga.App. 23. (2) The court should have sustained the defendant's motion to quash the search warrant. Sec. 6595, R. S. 1919, as amended by Laws 1921, p. 413, is unconstitutional in this: Said section is violative of Sections 11 and 30, Article 2, of the Constitution of Missouri, and of the fourth and fifth articles and of Section 1 of Article 14 of the Constitution of the United States of America. Lowry v. Rainwater, 70 Mo. 152; Boyd v. United States, 116 U.S. 616; Gould v. United States, 41 S.Ct. 261; Amos v. United States, 41 S.Ct. 266; Holmes v. United States, 275 F. 49; Duke v. United States, 275 F. 142; State v. Owens, 259 S.W. 100; State v. Locke, 259 S.W. 116; State v. Tunnell, 259 S.W. 128. (3) After having sustained the motion to return the bottles and containers to defendant, which were seized under the search warrant in question, palpable error was committed by the court in permitting the Sheriff and deputy sheriff to testify what they had found while acting under the search warrant. Authorities supra. (4) The testimony of witness Thompson to the effect that a month afterwards he had bought a dozen bottles of Jamaica ginger from defendant was too remote to throw any light on the issues involved in this prosecution. (5) Excluding the testimony which was erroneously admitted, the State absolutely failed to make out a case. The defendant was charged and convicted of having transported Jamaica ginger through his agent Roberts. The undisputed testimony shows that Roberts was not defendant's agent. At most it might be held that he was defendant's servant. There is a distinction between an "agent" and a "servant." An agent has more or less discretion, while a servant acts under the master's control and direction. McCrosky v. Hamilton, 108 Ga. 640; Kingan & Co. v. Silvers, 13 Ind.App. 80; Sumner v. Nevin, 4 Cal.App. 347.

Jesse W. Barrett, Attorney-General, and Wm. L. Vandeventer, Special Assistant Attorney-General, for respondent.

(1) The indictment was sufficient. It was in the words of the statute. State v. Bockstruck, 136 Mo. 335; Sec. 6596, R. S. 1919; State v. Ladd, 216 S.W. 1004; State v. Nash, 283 Mo. 32; State v. Farr, 255 S.W. 1069; State v. Smith, 261 S.W. 696; State v. Brown, 262 S.W. 710. It was not necessary to negative exceptions. Sec. 6596, R. S. 1919. (2) The court did not commit error in overruling the motion to quash the search warrant. The testimony on the motion failed to show the premises belonged to appellant; in fact, the testimony showed that they did not belong to him. Objections to an illegal search warrant can only be raised by the owner or person in possession of the premises. Lakes v. Commonwealth, 254 S.W. 908; Bowling v. Commonwealth, 193 Ky. 642; Lusco v. United States, 287 F. 69; United States v. Kaplan, 286 F. 963; Jones v. United States, 296 F. 632; Chicco v. United States, 284 F. 434; Haywood v. United States, 268 F. 803. (3) It was error to permit Fletcher Thompson to testify to buying Jamaica ginger from appellant. Evidence of other independent crimes is not admissible. State v. White, 223 S.W. 683; State v. Smith, 261 S.W. 696; State v. Palmer, 281 Mo. 530; State v. Spray, 174 Mo. 569. (4) The evidence was insufficient to support the verdict. (a) There was no proof that Jamaica ginger was actually transported. (b) There was no proof that it was intoxicating. State v. White, 261 S.W. 696; State v. McIntyre, 256 S.W. 141; State v. Craft, 246 S.W. 930; State v. Weagley, 240 S.W. 822; State v. St. Clair, 247 S.W. 203.

OPINION

Walker, P. J.

The defendant was indicted by the grand jury of Callaway County at the May term, 1921, of the circuit court, for transporting intoxicating liquor, viz: Jamaica ginger. On May 18, 1921, the prosecuting attorney made affidavit for a search warrant, alleging he believed that in a woodshed back of the Attwood Bakery in Fulton a quantity of intoxicating liquors had been stored on May 14, 1921, by one J. B. Fenley, who, the affiant believes, has been unlawfully selling intoxicating liquors. Upon this affidavit the clerk of the circuit court issued a search warrant, which, after setting forth the material portions of the affidavit as to the place to be searched, its ownership and the belief that the defendant had intoxicating liquor stored therein, directed the sheriff to search the same and produce the liquors found before the judge of the circuit court. Tried to a jury the defendant was convicted and fined $ 150, from which judgment he appeals.

The defendant filed a motion to quash the search warrant for the reason that it violated the Constitution of the United States and that of the State of Missouri, especially Sections 11 and 30 of Article II of the latter, and asked that the testimony procured thereby be suppressed. Evidence was introduced on the motion showing that no record had been made of the filing of the application for the search warrant and that the same had been issued by the clerk of the circuit court. The sheriff testified that he searched the woodshed described in the search warrant; that the store of the defendant is not situated on the same lot or block with the Attwood Bakery, but is across the street; that upon searching the woodshed he found several boxes and barrels of empty Jamaica ginger bottles; that he brought the bottles before the grand jury and that he didn't know under whose control the shed was. This was all the testimony on the motion except that the indictment and the motion to quash were introduced in evidence.

The evidence for the State tended to show that Walter Roberts was working for appellant in his grocery store in Fulton; that during Christmas week, 1920, Roberts, his wife and two others, went to St. Louis to do some Christmas shopping; that appellant asked Roberts to go to the O'Keefe grocery in St. Louis and get a package for him; that the next morning after they reached St. Louis Roberts went to the O'Keefe grocery and got the package, which was a large paper box, open at the top, and in which were several sealed cartons bearing the label "Sunday Girl Jamaica Ginger." This package was brought to Fulton by Roberts and delivered to appellant at about eleven o'clock Monday night. No witness testified as to the contents of the cartons save as indicated by the labels.

Mrs. Roberts testified that a short time before the grand jury met in May the appellant came to her and told her he had come to put a bug in her ear, that: "People who went before the grand jury and didn't know what to say were a blowed up cookie." She also testified that the label on the cartons stated that the contents were ninety per cent alcohol.

The State offered Fletcher Thompson as a witness, who testified that sometime during the preceeding winter (1920) he bought a carton of Jamaica ginger from appellant for which he gave him eight dollars. He did not remember the brand of Jamaica ginger, and did not tell Fenley what he wanted with it. Witness testified that he bought it to drink and did drink it; that on or about that time Jamaica ginger was used in that community as a beverage. The check with which witness paid for the Jamaica ginger was offered in evidence. On cross-examination witness testified that he went to appellant's place of business with a man named Harry Reid; that the latter went in and had a talk with Fenley before the transaction; that there wasn't any name or label on the carton; that he didn't know what amount of alcohol it contained, but that it had an effect on him different to alcohol and whiskey. It would merely burn him, and that was all the effect it had except it gave him a sleepy feeling.

A boy, named Fletcher, who had been employed by the defendant as a truck driver, testifying for the State, said that he had helped move a barrel and two or three boxes of empty Jamaica ginger bottles from defendant's store to the shed back of Attwood's Bakery, owned and controlled by the defendant; that defendant was in the store at the time and that the bottles were sitting at the head of the stairs; that the defendant had been in the habit of buying bottles of all descriptions from boys; that the bottles in question were moved across the main street in broad daylight just before noon.

Bishop the sheriff, testified that under the search warrant he searched the woodshed described therein, and found the bottles which were taken by him and later presented to the grand jury; that he didn't know who owned the shed; that the defendant was not present at the time the search was made, but came...