The State v. Rhodes
| Decision Date | 24 January 1927 |
| Docket Number | 27524 |
| Citation | 292 S.W. 78,316 Mo. 571 |
| Parties | The State v. Ross L. Rhodes and Bill Rhodes, Appellants |
| Court | Missouri Supreme Court |
Appeal from Christian Circuit Court; Hon. Fred Stewart Judge.
Affirmed as to Bill Rhodes and reversed as to Rass Rhodes.
North T. Gentry, Attorney-General, and H. O Harrawood, Special Assistant Attorney-General, for respondent.
(1) The motion to quash and to suppress the evidence was properly overruled. The application of the prosecuting attorney for the search warrant and the issuance of the same by the justice of the peace, met the requirements of the statutes. The statement of facts in the application is sufficient to show probable cause. Evidence offered by the defense at the hearing of the motion to quash, tending to show that the prosecuting attorney had no personal knowledge of the truth of the facts stated in his application for search warrant was not admissible. Sec. 25, p. 244, Laws 1923; State v. Halbrook, 279 S.W. 395; State v. Shelton, 284 S.W. 433; State v. Cobb, 273 S.W. 738; State v. Perry, 267 S.W. 831; 33 C. J. 376. (2) The demurrer at the close of all the evidence was properly overruled as to Bill Rhodes. Proof of his guilt was positive and admitted by the defense. Evidence of the guilt of Rass Rhodes was slight; but instructions of the court on this point were exceedingly liberal and weight of evidence was for the consideration of the jury. State v. Howe, 228 S.W. 477; State v. Winkler, 273 S.W. 1043; State v. Cason, 252 S.W. 689; State v. Bennett, 270 S.W. 295; State v. Gatlin, 267 S.W. 797; State v. Cardwell, 279 S.W. 99; State v. Cockrum, 278 S.W. 700. (3) The instructions of the court were proper and particularly fair and liberal toward the defendant. No exceptions were saved to the instructions given by the court, nor was any instruction offered by the defense. State v. Cantlin, 118 Mo. 100; State v. Allbright, 144 Mo. 642; State v. Vinso, 171 Mo. 591.
Defendants, Rass L. Rhodes and Bill Rhodes, were charged in a verified information filed in the Circuit Court of Christian County on January 8, 1926, with feloniously, unlawfully and wilfully manufacturing corn whiskey. Thereafter defendants filed, and the court overruled, a motion to quash the information and suppress the evidence, said motion alleging that the evidence was obtained by means of a search warrant issued in contravention of Sections 11 and 23 of Article 2 of the Constitution of Missouri.
Subsequently on January 28, 1926, the defendants waived arraignment and entered their pleas of not guilty; on the same day a trial was had before the court and a jury, the jury returning a verdict, regular in form and substance, finding defendants guilty as charged in the information and assessing their punishment each at five hundred dollars and twelve months in the county jail. Within the time allowed by law a motion for a new trial was filed and overruled, allocution was had and judgment and sentence pronounced and entered in accordance with the verdict. Later an appeal was duly allowed defendants to this court.
On October 27, 1925, the Prosecuting Attorney of Christian County executed an affidavit for a search warrant before J. M. Williams, a justice of the peace, who thereupon issued a search warrant for the search of the premises of Bill Rhodes.
The evidence on the part of the State tends to show that Rass Rhodes and Bill Rhodes were father and son, residing about two hundred yards apart in Stone and Christian counties, respectively; that John H. Turner, Sheriff of Christian County, with his deputies, acting under a search warrant issued in pursuance to the above affidavit, visited the home of defendant Bill Rhodes in Christian County in October, 1925, and, after a search of the premises, found defendant Bill Rhodes engaged in operating a still in a basement or dug-out under his dwelling, manufacturing corn whiskey. In addition to a complete outfit for distilling, there was found eight barrels of mash and about twenty gallons of corn whiskey. At the same time the Sheriff of Stone County, operating under another search warrant, was searching the dwelling of Rass Rhodes in Stone County about two hundred yards west of Bill Rhodes's residence. The deputies, executing the search warrant as to Bill Rhodes's premises, thereupon visited the premises of Rass Rhodes and there found four legs of the stove which Bill Rhodes was using in the basement of his dwelling manufacturing whiskey. An incomplete excavation was found under the house of Rass Rhodes similar to the excavation found under the house of Bill Rhodes. The evidence in regard thereto is as follows:
The following evidence was relied upon to show circumstances against Rass Rhodes:
The testimony of Mrs. Rass Rhodes, for defendant, tended to show that Bill Rhodes came to her house and obtained the oil stove while Rass Rhodes was away from home; that Rass Rhodes knew nothing about it, and that witness would not have let Bill have the stove had she known what he wanted it for. There was evidence offered as to the good reputation of Bill Rhodes.
At the close of the State's case and the whole case, the defendants offered instructions in the nature of demurrers to the evidence, which the court refused to give in each instance. Such other facts as are pertinent to the issues involved will be noted in the opinion.
I. Without the benefit of a brief in defendants' behalf we must look to the record proper and the motion for a new trial for the assignments of error.
The first assignment of error in the motion for a new trial relates to the overruling of the motion to quash and suppress the evidence found on the premises of Bill Rhodes.
While we think the search warrant was void because it failed to describe the place to be searched as nearly as may be, as prescribed by Section 11, Art. 2, of our Constitution, yet the evidence sought to be suppressed was admissible on the theory that the sheriff named in the warrant as executor thereof, before he entered the home of Bill Rhodes, had reasonable grounds or probable cause to and did suspect that a felony was being committed therein. That the above rule is apposite is based on the testimony of the sheriff that he smelled liquor and mash before he knocked on the door and while he was ten or fifteen steps from the house on the private road leading thereto. These facts or knowledge constituted reasonable grounds to suspect that a felony was taking place therein, causing, as we later show, his subsequent entry and that of his deputies to become lawful. That the crime was being committed vested the sheriff with authority to enter, justifying the entry and the arrest without warrant. [McBride v. United States, 287 F 214, affirmed 284 F. 416, and certiorari denied, 261 U.S. 614.] That an...
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