The State v. Shelton

• Decision Date: 21 May 1926
• Docket Number: 26642
• Parties: THE STATE v. JOHN D. SHELTON, Appellant
• Court: Missouri Supreme Court

284 S.W. 433

314 Mo. 333

THE STATE v. JOHN D. SHELTON, Appellant

No. 26642

Supreme Court of Missouri

May 21, 1926

Appeal from Dent Circuit Court; Hon. W. E. Barton, Judge.

Affirmed.

Wm P. Elmer for appellant.

(1) The search warrant was illegal and void: (a) The application of the prosecuting attorney stated no facts from which probable cause could be found to exist. It stated a conclusion. Stokes v. United States, 5 F. 312; In re No. 111, 5 F. 282; Sec. 11, Art. 2, Mo. Constitution; Hogan v. United States, 4 F. 801; State v Lock, 259 S.W. 116; State v. Owen, 259 S.W 102; Craft v. Commonwealth, 247 S.W. 722; Holbrooks v. Commonwealth, 247 S.W. 751. (b) The search warrant violated the defendant's rights under Sec. 11, Art. 2, and Sec. 23, Art. 2, of the Constitution, in searching his home and premises and compelling him to furnish evidence against himself, whether valid on its face or not. Lowry v. Rainwater, 70 Mo. 152; State v. Owen, 259 S.W. 101; State v. Cobb, 273 S.W. 739. (c) Section 25 of the Act of April 3, 1923, violates Sec. 11, Art. 2, of the Constitution, authorizing search and seizure on the petition of officials without requiring or specifying the facts or grounds upon which said warrant must be based, or stated in the application; and may be issued on parol evidence and is left to the determination of the justice of the peace. Said Section 25 also violates Sec. 30, Art. 2, of the Constitution, in permitting the arrest of defendant without a warrant on a criminal charge and without any offense being committed in the presence of an officer and authorizes the destruction, taking and removal of property described in said section without due process of law and without making any provision for a hearing before or after taking and destroying said property, or summoning defendant into any court to try the truth of the application. It provides for confiscation, and empowers the officer executing the search warrant to determine what articles are or are not contraband. Sec. 25, Laws 1923, p. 244; 35 Cyc. 1267, note 20; Lowry v. Rainwater, 70 Mo. 152; State v. Owens, 259 S.W. 101; 12 C. J. 1250, 1251. (d) Because the affidavits of the prosecuting attorney and the sheriff were untrue in substance and in fact and were not even based on hearsay evidence. They had no knowledge of any violation of law by defendant at the time of swearing out the search warrant. It was proper to impeach the warrant by showing it was based on hearsay or false testimony. State v. Smith, 262 S.W. 65; State v. Shelton, 267 S.W. 941; State v. Price, 274 S.W. 501. (e) Notice is the essence of due process of law. None is provided for under Section 25. Bank v. Thompson, 170 Mo.App. 76; Wilcox v. Phillips, 169 S.W. 55, 260 Mo. 664; Ohlmann v. Clarkson, 120 S.W. 1155. (f) The search warrant did not command the officer to bring the confiscated goods before the justice or the circuit court and is therefore void. 35 Cyc. 1266 (e), 1267 (2). (2) The search warrant was void. Upon the filing of the applications of the prosecuting attorney and sheriff, the justice of the peace at once issued the search warrant. No findings of probable cause or order were made before the issuance of the same. This is required by Section 25. Sec. 11, Art. 2, Constitution; Sec. 25, Laws 1923, p. 244. (3) The court erred in excluding the testimony as to Mullinix's conviction for violating the prohibition law. The fact of his appeal did not prevent showing the conviction to affect his credibility. 40 Cyc. 2611. The illegally admitted evidence of the mash was the only thing that corroborated Mullinix. State v. Bauerle, 145 Mo. 1, 46 S.W. 609.

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

(1) Count two of the information followed the language of the statute and was therefore sufficient. Sec. 6588, Laws 1921, p. 414, Sec. 6596, R. S. 1919. (2) The validity of the search warrant is not important because the defendant was not convicted upon any evidence obtained by the officers, but if a search warrant was necessary, the search warrant and the application therefor in this case were in due and proper form. State v. Cobb, 273 S.W. 736; State v. Perry, 267 S.W. 828.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On April 6, 1925, the Prosecuting Attorney of Dent County, Missouri, filed in the circuit court of said county a verified information, in three counts. The first count charged defendant with unlawfully having in possession on the day of January, 1925, in said county, six gallons of mash, then being used and fit for use in the unlawful manufacture of intoxicating liquors for beverage purposes. The first count was not submitted to the jury, and seems to have practically dropped out of the case. The third count charged defendant with the crime of unlawfully having in his possession intoxicating liquors for beverage purposes. The jury acquitted him under this charge.

The second count, omitting formal matters, reads as follows:

"Clyde C. Cope, Prosecuting Attorney within and for the County of Dent and State of Missouri, upon his oath of office, information and belief, informs the court that John D. Shelton, on about the day of , 1924, at and in the County of Dent and State of Missouri, did then and there wilfully and unlawfully manufacture intoxicating liquors for beverage purposes, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State."

On said 6th day of April, 1925, appellant filed a motion to quash the search warrant and suppress evidence. On the same date defendant filed a motion to quash the information. Both motions were overruled. On April 10, 1925, defendant was arraigned and entered a plea of not guilty. Thereafter on the same date, the jury before whom the cause was tried returned into court the following verdict:

"We, the jury, find defendant guilty as charged in the second count of the information and assess his punishment at a fine $ 200.

"Charles Stout, Foreman.

"We, the jury, find defendant not guilty as to the third count of the information.

"Charles Stout, Foreman."

On April 11, 1925, defendant filed a motion for a new trial, which was overruled. Thereafter, on the same day, allocution was granted, judgment rendered and sentence pronounced under the second count aforesaid in conformity to said verdict. Thereafter, defendant, in due form, was granted an appeal to this court on account of constitutional questions presented.

The prosecutions were all had under the provisions of Section 6588 of the intoxicating liquor law of 1921, as reported in the Session Acts of 1921, at page 414. The main facts are fairly stated by counsel for respondent as follows:

John R. Welch, Sheriff of Dent County, testified that early in 1925 he made a search of the defendant's farm in Dent County, Missouri, and found in the barn loft of the defendant four or five gallons of corn mash fit for use in the manufacture of intoxicating liquor; that he took a sample of the liquid off of this mash and it had the odor of alcohol. He further testified that he made a second search a short time later and found a big hollow running from the Meramec River near defendant's farm and up through defendant's corn field; that beyond defendant's corn field there was a large gully which emptied into this big hollow running to the river, and a path or road led from the gully to the defendant's barn. In this gully the sheriff found a shovel, a small barrel, three gunny sacks under a rock, the top of an old stove and several places where fires had been built, a broken piece of a jug, some broken fruit jars and several piles of corn mash. That beyond the gully some fifty or seventy-five yards and off of defendant's farm he found a man-made cave down in the ground which was entered by climbing down an Indian ladder. As stated, the sheriff found the mash in the barn on his first visit, and the other articles on his second visit.

The witness Bates, a deputy sheriff, was present during the second search, and corroborated the sheriff as to the articles found in the gully and also as to the cave, and added certain other articles, to-wit, a teacup, a spoon, and some flour paste. He further testified that the gully was some two hundred and seventy-five yards from defendant's home and off of his land.

The witness John Mullinix, upon whose testimony the defendant was convicted under count two, testified that a few days prior to December 20, 1924, he met the defendant in Salem, Missouri, and that the defendant told the witness that he intended to run off a batch of whiskey about the 20th of December; that on the 20th of December, 1924, the witness went out to the defendant's farm to secure some of the whiskey; that he and the defendant went out to the cave identified by the sheriff and his deputy and went down in the cave; that the defendant had a still in operation in said cave on said occasion, and that the witness purchased a quart of whiskey which was made in said still on that night by the defendant.

The evidence for the defendant consisted of a flat denial of the testimony of the witness Mullinix. The defendant also denied the ownership or possession of any of the articles found in the gully off of his place and denied any control over the cave mentioned by the State's witness. He further testified that the corn mash found in his barn was hog feed and was used by him in fattening a large hog, which other witnesses said the defendant owned and killed some time during the past winter. The defendant also offered several witnesses to impeach the veracity of the witness Mullinix.

As the first count of the information was abandoned, and the defendant was found not guilty...