The State v. McNeece

• Decision Date: 03 June 1927
• Docket Number: 27813
• Parties: The State v. John McNeece, Appellant
• Court: Missouri Supreme Court

295 S.W. 737

317 Mo. 304

The State v. John McNeece, Appellant

No. 27813

Supreme Court of Missouri

June 3, 1927

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Affirmed.

North T. Gentry, Attorney-General, and H. O Harrawood, Special Assistant Attorney-General, for respondent.

(1) The motion to suppress the evidence was properly overruled. The sheriff and his deputy had information that defendant was transporting whiskey and were looking for him. No search warrant is required to search automobiles when the officers have reasons to believe they are being used in the illegal transportation of intoxicating liquor. State v Bennett, 270 S.W. 295; State v. Hall, 279 S.W. 102. (2) Defendant on the witness stand admitted transportation of moonshine corn whiskey but, insisted that he was taking it home for his own personal use. He admitted further that he had bought the whiskey from a bootlegger. Having unlawfully acquired the intoxicating liquor the transportation was unlawful, even though intended for personal use. This point is not mentioned in the motion for new trial. State v. Bush, 245 S.W. 588; Steinwach v. Commonwealth, 246 S.W. 795; Scaggs v. Commonwealth, 244 S.W. 799; Dials v. Commonwealth, 233 S.W. 888.

OPINION

Blair, J.

This is an appeal from a conviction for the felony of transporting moonshine or corn whiskey, as defined by Section 21, Laws 1923, page 242. The punishment imposed by the jury was imprisonment in the county jail for twelve months and a fine of $ 500.

The only question is the alleged error of the trial court in overruling appellant's motion to suppress evidence obtained by a search of appellant's automobile without a search warrant. The case is unique in that appellant admitted as a witness that he was transporting moonshine corn whiskey at the time of his arrest. It is therefore unnecessary to detail facts further than those which shed light upon the alleged illegality of the search.

Appellant, his son and one York were riding in a Ford automobile, belonging to and driven by appellant, when they were overhauled by the sheriff and two deputies. This occurred in Dunklin County on or about April 24, 1925. York and young McNeece got out of the automobile and attempted to escape. They were overtaken and brought back. Appellant remained in the automobile. When asked by the deputy sheriff what he had in the automobile, he admitted that he had whiskey. By lifting up a blanket or some sort of bedding used as a covering, a five-gallon keg and smaller containers of moonshine or corn whiskey were found. Appellant admitted and the officers testified that the liquor contained in the keg and other receptacles was moonshine corn whiskey. Appellant also admitted that he was transporting the liquor. He said, and his son and York contended, that the whiskey was the sole property of the appellant, and neither York nor the son knew of its presence in the back part of the automobile. That fact is of no significance here, because only appellant was on trial.

The sheriff and both of his deputies testified that appellant was suspected of transporting moonshine whiskey. They met him driving his automobile upon the highway. They turned their automobile around and followed appellant's automobile and overtook it. The deputy who arrested appellant testified that he made the arrest before he looked in the automobile for the whiskey. Appellant admitted that he was arrested before the search was made. The sheriff and his deputies had no search warrant.

Appellant has not furnished us with any brief. Respondent has cited State v. Bennett (Mo. Sup.), 270 S.W. 295, and State v. Hall (Mo. Sup.), 279 S.W. 102, as authority for the proposition that "no search warrant is required to search automobiles when the officers have reasons to believe they are being used in the illegal transportation of...