The State v. Richardson

• Decision Date: 14 March 1927
• Docket Number: 27532
• Citation: 292 S.W. 61,316 Mo. 1014
• Parties: The State v. Frank Richardson, Appellant
• Court: Missouri Supreme Court

292 S.W. 61

316 Mo. 1014

The State v. Frank Richardson, Appellant

No. 27532

Supreme Court of Missouri

March 14, 1927

Appeal from Lawrence Circuit Court; Hon. Charles L. Henson Judge.

Affirmed.

Robert Stemmons and M. O. Morris for appellant.

An application for a search warrant based upon hearsay is insufficient, and a search warrant issued thereon is void. State v. Smith, 262 S.W. 65; State v. Huckabe, 269 S.W. 691; Sec. 11, art. 2, Mo. Constitution.

North T. Gentry, Attorney-General, and Claud Curtis Special Assistant Attorney-General, for respondent.

The court properly overruled appellant's motion to suppress. State v. Hall, 279 S.W. 106; State v Perry, 267 S.W. 831; State v. Cockrum, 278 S.W. 702; State v. Cobb, 273 S.W. 736; Laws 1923, sec. 25, p. 244.

OPINION

Walker, J.

The appellant was charged by information in the Circuit Court of Lawrence County with the possession of a worm, doubler, mash tubs and mash for the distilling and manufacture of intoxicating liquor. Upon a trial to a jury the appellant was convicted and his punishment assessed at a fine of $ 500 and six months' imprisonment in the county jail. From this judgment he appeals.

The examination of the premises of the appellant which disclosed his possession of the instrumentalities used in the manufacture of intoxicating liquor, was made by the sheriff under the authority of a search warrant, the validity of which is challenged. The appellant's motion to suppress the warrant was overruled by the trial court. The grounds of this motion are, first, that the application and petition for the warrant was based on hearsay and not on the personal knowledge of the prosecuting attorney; and second, that the oral testimony presented to the justice of the peace who issued the warrant was not reduced to writing as required by the Constitution and was not sufficient to base a finding of probable cause thereon for the issuance of the warrant.

More particularly stated, while the offense charged in the information is a misdemeanor, the appellant properly raised the question as to the constitutionality of the law authorizing the issuance of a search warrant; his contention being that under the facts, the warrant was, as issued, violative of said Section 11, Article 2, Constitution of Missouri, in that the application and the warrant issued thereon did not properly describe the premises sought to be searched and was not supported by the oath of the applicant therefor reduced to writing as required by said section.

I. As we recently held in State v. Hammers, 316 Mo. 977, following our ruling in State v. Halbrook, 311 Mo. l. c. 677, "it is not a condition precedent to the filing of an application for a search warrant that the prosecuting attorney have personal knowledge of the truth of the facts stated in his application."

The application and affidavit of the prosecuting attorney, as well as the warrant issued thereon, describe the premises sought to be searched and after stating the nature of his information alleges that a worm, still, doubler, mash tubs etc., were kept and being used in said premises in the unlawful manufacturing and production of intoxicating liquor; and to the warrant was added, by the justice of the peace issuing the same, that there was probable cause to believe that the prohibition laws of Missouri were being violated and the sheriff was...