The State v. Marshall

• Citation: 297 S.W. 63,317 Mo. 413
• Decision Date: 23 June 1927
• Docket Number: 27502
• Parties: The State v. Tom Marshall, Plaintiff in Error
• Court: United States State Supreme Court of Missouri

297 S.W. 63

317 Mo. 413

The State v. Tom Marshall, Plaintiff in Error

No. 27502

Supreme Court of Missouri

June 23, 1927

Motion for Rehearing Overruled. July 13, 1927.

Error to Shelby Circuit Court; Hon. Charles T. Hays Judge.

Affirmed.

Matthews & Jones, Waldo Edwards and Wm. M. Van Cleve for plaintiff in error.

(1) It is apparent from the reading of this search warrant that it was filed before the circuit clerk, and that it was issued by the circuit clerk upon a finding made by the circuit clerk. The circuit clerk is not a judicial officer. He has no judicial authority or discretion, and he cannot make a finding of facts and cannot perform any judicial functions hence, any search warrant issued by the circuit clerk is absolutely illegal and void. State v. Declue, 267 S.W. 45; State v. Tunnell, 259 S.W. 129; State v. Owens, 259 S.W. 100; State v. Lock, 302 Mo. 400. (2) The search warrant was illegal and void and it necessarily follows that the court erred in permitting the witnesses, Williams and Meisner, to testify as to any information they obtained by reason of the service of such search warrant. (3) Serious error was committed in permitting Williams and Stokes to testify as to the alcoholic contents of the liquid seized, on the day of the trial, which did not confirm the testimony to the alcoholic contents of the liquor on the date of the alleged finding of the same. (4) The defendant should have been granted a new trial on account of the persistent misconduct and improper remarks of the prosecuting attorney and assistant counsel for the State in their arguments of this case to the jury. (5) The special judge called in to try this case was disqualified by an affidavit made by the defendant, supported by the affidavits of two credible persons. Sec. 3991, R. S. 1919. Said special judge should have disqualified himself. State v. Gilham, 174 Mo. 671; State v. Sechrist, 226 Mo. 574; Ex parte Howell, 200 S.W. 72. (6) The disqualification of a judge under Section 3991, is not a change of venue. State ex rel. McAllister v. Slate, 278 Mo. 577.

North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for defendant in error.

(1) The search warrant is valid. The petition on which it is based is in proper form and was correctly filed in the circuit court. The court, having found probable cause therefrom and the showing made thereon, ordered the clerk of the circuit court to issue the warrant. Circuit courts are empowered and authorized to issue search warrants. Laws 1923, sec. 25, p. 244; State v. Hall, 279 S.W. 106; State v. Halbrook, 279 S.W. 397; State v. Locke, 302 Mo. 400; State v. Coleman, 259 S.W. 432. All averments in the warrant, contrary to the order of the court, as shown by the record entry, are surplusage and cannot vitiate the order of the court. (2) The court properly overruled defendant's motion to quash the jury panel. Motions of this character do not prove themselves. The record shows that no evidence was introduced in support of the motion, consequently, there is nothing presented for this court to review. Furthermore, the assignment was not saved in the motion for new trial. State v. Murphy, 292 Mo. 287. (3) The court properly declined defendant's offer of evidence, tending to show his good reputation for truth and veracity. Evidence of defendant's reputation for truth and veracity is inadmissible when not attacked by the State. His general reputation for truth and veracity was not an issue in the case. Underhill, Criminal Evidence (3 Ed.) 136; State v. King, 78 Mo. 555; State v. Taylor, 293 Mo. 210; State v. Beckner, 194 Mo. 292. (4) The court properly admitted the testimony of witnesses Jack Williams and J. B. Stokes. Their evidence was competent and relevant for the purpose of showing that the liquor found on defendant's premises, was, in fact, intoxicating. The liquor or liquids were properly identified as that which the officers seized during the search. The State is under no burden of showing that the liquor was intoxicating at any particular time. A showing that the liquor obtained from the defendant, was, in fact, intoxicating, is sufficient. State v. Griffith, 279 S.W. 135; State v. Sherlock, 273 S.W. 143; State v. Combs, 273 S.W. 1039. (5) Defendant is in no position to complain of the improper remarks made by the prosecuting attorney in argument of the case to the jury. In each instance, save one, of objection interposed, he was sustained by the court and the jury instructed to disregard said remarks. The remark of the prosecuting attorney, to which the court refused to sustain defendant's objection, does not constitute reversible error. Defendant's rights were not prejudiced by anything contained therein. The remark was evidently favorable to defendant. State v. Tracy, 294 Mo. 390; State v. Cooper, 271 S.W. 475; State v. Harvey, 214 Mo. 411; State v. Murrell, 289 S.W. 859; State v. Rogers, 253 Mo. 415; State v. Sherman, 264 Mo. 384-5; State v. White, 299 Mo. 611; State v. Rasco, 239 Mo. 579; State v. McBride, 231 S.W. 594. (6) The special judge called to try the case by the regular judge, properly refused to disqualify himself on the alleged grounds of bias and prejudice. Defendant was entitled to only one so-called change of venue from one judge to another on the grounds of bias and prejudice. Sec. 3991, R. S. 1919, applies only to the regular judge. State v. Sanders, 106 Mo. 188; State ex rel. McAllister v. Slate, 278 Mo. 570.

OPINION

White, P. J.

August 17, 1925, defendant, charged with possession of intoxicating liquor, was found guilty by a jury in the Circuit Court of Shelby County, and punishment assessed at a fine of $ 400, and imprisonment in the county jail for one year. The charge was a misdemeanor, under Section 6588, Revised Statutes 1919, as amended in the Act of 1921. [Laws 1921, p. 414.] The defendant in the trial court raised certain constitutional questions which were ruled against him. Accordingly he sued out a writ of error in this court which has jurisdiction.

On January 30, 1925, the defendant operated a soft-drink parlor, on Deed Avenue, in the city of Macon. On that day the Deputy Sheriff of Macon County, Jack Williams, armed with a search warrant, searched the premises there and found a quart bottle about one-third full of corn whiskey; also found other intoxicating liquor, according to the testimony of the officer. The defendant strenuously objected to the sufficiency and the competency of the testimony in relation to that matter. He testified that he sold soft drinks, jobbed empty bottles, etc., but handled no intoxicating liquor. He was present at the time the deputy sheriff searched the place, and denied that any intoxicating liquor was found. He offered evidence to the effect that his general reputation for truth and veracity was good. The evidence was excluded on objection of the State. Before the trial he filed a motion to quash the jury panel, a motion to quash the search warrant, a motion to quash the information, and a motion to disqualify the judge, all of which were overruled, and each of such rulings is assigned here as error.

The information was filed in the Circuit Court of Macon County. An application for change of venue was filed before Judge Drain of that court, and was sustained, and Judge Hayes of the Tenth Judicial Circuit was called to try the case. The defendant then filed an application for disqualification of Judge Hayes, which was overruled. The defendant then filed application for change of venue on account of bias and prejudice of the inhabitants of Macon County. This application, supported in due form by proper affidavits, was sustained, and the case was sent to Shelby County, in the same circuit as Macon County, where it was tried.

I. The plaintiff in error complains of the refusal of Judge Hayes to disqualify himself on appellant's motion. This motion was filed and this ruling had in Macon County. No term bill of exceptions was filed in Macon County. The court took evidence on that motion and certain records were introduced. The record and proceedings in Macon County were certified by H. S. Easley, Clerk of the Circuit Court of Macon County, and transmitted to Shelby County. Attached to that record is what is designated as a bill of exceptions, purporting to contain the evidence taken on a plea to the jurisdiction, or rather the motion to disqualify Judge Hayes. This document purports to be certified by the official stenographer. It is not included in the clerk's transcript, it is not certified by the clerk, it is not signed by the judge; there is nothing to show that it was ever filed in Macon County. It is not incorporated in the bill of exceptions filed in Shelby County, and could not properly be incorporated in that bill of exceptions. In order to be a matter of record for our consideration it would have to be incorporated in a bill of exceptions and duly filed in Macon County. Therefore, the alleged disqualification of Judge Hayes to hear the case is not before us for consideration.

II. Error is assigned to the overruling by the court of the motion of plaintiff in error to quash the panel on the ground that the statute was not complied with in impaneling the jury. All we know about that appears in the assignment of errors in the brief.

No such motion appears in the record which we have for consideration. It is not in the bill of exceptions. If it were it would not prove itself. [State v. Murphy, 292 Mo. l. c. 287.] There is no evidence in the record showing that the jury was not properly impaneled according to law. No motion to quash the information appears in the bill of exceptions.

III. It is next claimed that the motion to quash the search warrant was improperly overruled, because such...