The State v. Hall

• Decision Date: 06 January 1926
• Docket Number: 26547
• Parties: THE STATE v. HAROLD HALL, Appellant
• Court: Missouri Supreme Court

279 S.W. 102

312 Mo. 425

THE STATE v. HAROLD HALL, Appellant

No. 26547

Supreme Court of Missouri

January 6, 1926

Appeal from Cass Circuit Court; Hon. Berry G. Thurman Special Judge.

Affirmed.

W D. Summers and W. M. Anderson for appellant.

(1) The court erred in not sustaining defendant's motion to quash the illegal search warrant and suppress the evidence obtained thereunder. State v. Rebasti, 267 S.W. 861; State v. Hall, 265 S.W. 843; State v Owens, 302 Mo. 348; State v. Lock, 302 Mo. 400; State v. Tunnell, 302 Mo. 433; State v. Smith, 262 S.W. 65. (2) The court erred in not sustaining defendant's motion to quash the new information filed after the change of venue and just before the special judge called in to try the case called said case for trial. (a) Because the change of venue was taken in a case charging defendant with transporting intoxicating liquors (a felony). (b) And the new information charged the same crime in one count and possessing intoxicating liquor (a misdemeanor) in the other count. (c) Which first count charged a new offense not pending against him before the change of venue, and the same was not an amendment. (d) Thus charging a new crime, which could not be done on change of venue. (e) The judge called in was called to try the case then pending and no other. State v. Billings, 140 Mo. 193. (3) The court should have granted a continuance, for the record shows that a new information was filed after the special judge took the bench and called the case for trial and defendant alleged surprise and that he was not prepared to defend against said new charge. (4) The defendant renewed his objection to the introduction of the evidence obtained by the illegal search warrant at the beginning of the trial and at every step taken in the case and having wrongfully refused to quash such evidence the court erred in not sustaining defendant's objection to same and also erred in not instructing the jury to disregard same at close of the case. Cases under Proposition 1. (5) The court erred in not sustaining defendant's demurrer at close of State's case, especially as to the charge of transporting, for there had been no evidence of transporting offered up to that time. All the evidence up to that time was that defendant was seated in a Ford car at the side of the road and that the officers passed him and came back and he was still there. (6) The court should have sustained the demurrer to the evidence at the close of the evidence for there was no evidence of transporting of intoxicating liquors. (7) The jury convicted the defendant on inference and not on any proven fact of transportation. State v. Billings, 140 Mo. 193; State v. Patterson, 73 Mo. 695; State v. Goddard, 162 Mo. 198. (8) The verdict is excessive, and the court should have set it aside, as it, on its face, shows prejudice and passion of the jury.

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

(1) No search warrant was necessary at the time the officers took the corn whiskey from the defendant's automobile. (a) The testimony of the officers shows that the glass bottles containing the liquor which was seized by them were unconcealed and open to plain view from their car, and that they saw the bottles prior to the time they seized them and prior to the time they placed defendant under arrest. Ferrell v. Commonwealth, 264 S.W. 1078; Vachina v. United States, 283 F. 35; Fletcher v. Commonwealth, 245 S.W. 134; Royce v. Commonwealth, 239 S.W. 795; State v. Mullen, 207 P. 634. (b) The application for a search warrant filed by the prosecuting attorney states that he had been informed by a citizen that such citizen had made arrangement with the defendant to purchase some liquor from the defendant at the time and place where the defendant was arrested. Such information was in and of itself sufficient to constitute reasonable cause on the part of the officers to believe that the automobile found in possession of defendant contained contraband liquor and therefore no search warrant was necessary. Elrod v. Moss, 278 F. 123; State v. Spaugh, 200 Mo. 571; State v. Underwood, 75 Mo. 230; State v. Evans, 161 Mo. 95; State v. McNally, 87 Mo. 644; State v. Grant, 79 Mo. 113. (c) If under any possible theory of the law a search warrant was necessary under the facts in this case the application of the prosecuting attorney for the search warrant and the search warrant itself were entirely sufficient, the variance alleged by the defendant in the name of the car being immaterial and unimportant. State v. Perry, 267 S.W. 828; State v. Hesse, 191 N.W. 267; United States v. Borkowski, 268 F. 410; United States v. Rykowski, 267 F. 866. (2) The court committed no error in permitting the prosecuting attorney to file an amended information after change of venue was granted. The change of venue was taken from the judge and not from the county. Secs. 3762, 3853, R. S. 1919. (3) The court's failure to sustain defendant's demurrer at the close of the State's case for the reason that the evidence at that time did not prove felonious transportation was waived by the defendant when he introduced testimony in his own behalf, and since his testimony showed that he did transport the liquid contained in the bottles offered in evidence, he supplied the testimony which the State failed to produce in presenting the State's case, and the appellant is now in no position to complain. State v. Starling, 207 S.W. 767; State v. Jackson, 222 S.W. 746; State v. Meagher, 49 Mo.App. 571.

OPINION

Walker, P. J.

The appellant was charged in one count by information in the Circuit Court of Cass County with the felonious transportation of intoxicating liquor, to-wit, hootch, moonshine and corn whiskey; and in another with the unlawful possession of intoxicating liquor. Upon a trial to a jury before a judge of another circuit called in to try the case, the regular judge having been disqualified by the appellant, he was, in July, 1924, convicted on the count for transportation, and sentenced to four years' imprisonment in the penitentiary. From this judgment he appeals.

A deputy sheriff of Cass County, the night marshal of Pleasant Hill and two others, at about five o'clock on the afternoon of July 19, 1924, at a point on the Harrisonville-East Lynne road near the Harrisonville cemetery, about one and one-fourth miles from Harrisonville, saw the appellant sitting in an automobile on the side of the road with two glass one-gallon bottles or jars in the car between the front and back seats. The officers had received information that the appellant would deliver intoxicating liquor to one Severs at that point. The appellant was arrested and taken with the bottles or jars and their contents before a justice of the peace, a complaint was filed by the prosecuting attorney charging him with the transportation of the intoxicating liquors specifically named, and he was required to give bond for his appearance in answer to said charge. While at the justice's office and in custody of the officers, he asked and was given permission to talk to his wife. In this conversation he told her that "he had been caught with the goods on him, and that he wanted her to come up and see if he could get bond." An examination of the contents of the bottles found unconcealed in appellant's car showed that the liquor contained therein was corn whiskey. These bottles and their contents were kept in a vault by the prosecuting attorney from the time they were taken to the justice's office until the trial, when they were introduced and examined by the jury.

Prior to the arrest of the appellant the prosecuting attorney had filed a sworn petition with a justice of the peace of the township for the issuance of a search warrant to the sheriff of the county, commanding him to apprehend said Harold Hall (appellant), and by force if necessary to search and seize a certain Chevrolet touring automobile, owned and operated by said Harold Hall, in which it was alleged that intoxicating liquors, to-wit, hootch, moonshine and corn whiskey, were, by said Harold Hall, being transported for the purpose of making an unlawful sale of same to one Severs, said sale to be made on the Harrisonville-East Lynne road, near the Harrisonville cemetery in Cass County, on the 19th day of July, 1924, at about five o'clock, P. M., of that day. That affiant is informed that said Severs has made arrangements with the appellant to deliver the said intoxicating liquors to him as aforesaid and that the said liquors were being unlawfully transported and sold by said Harold Hall. Under the warrant thus issued in conformity to the allegations of the petition the sheriff arrested the appellant and seized the bottles of liquor.

The appellant and a witness, who testified in his behalf, stated that the bottles taken from appellant by the sheriff did not contain intoxicating liquor, but water drawn from appellant's well, and that he took it to the place where he was arrested to sell it to Severs under the pretense that it was corn whiskey, as he had been warned that Severs was acting as a "stool pigeon" in the detection and prosecution of crimes against the prohibition statute. Appellant also denied having any telephone conversation with his wife in the presence and hearing of the officers in which he admitted his guilt. The principal contention of the appellant is that the seizure of the liquor in his car was illegal because the officers did not have a valid warrant authorizing the search of the automobile. A motion was filed and overruled prior to the trial to quash the warrant and to suppress the evidence introduced in support thereof. The defects in the warrant are alleged to consist in a failure to properly...