The State v. Zugras

• Decision Date: 31 December 1924
• Docket Number: 25642
• Parties: THE STATE v. JAMES ZUGRAS, Appellant
• Court: Missouri Supreme Court

267 S.W. 804

306 Mo. 492

THE STATE v. JAMES ZUGRAS, Appellant

No. 25642

Supreme Court of Missouri

December 31, 1924

Appeal from Ralls Circuit Court; Hon. Charles T. Hays Judge.

Affirmed.

Drake Watson and D. M. Stout for appellant.

(1) The affidavit for a search warrant is based on belief stating "that I verily believe from evidence obtained that one James Zugras is engaged in the manufacture," etc stating no fact or circumstance on which he bases his belief is not a sufficient showing for a judicial finding that there is probable cause for issuance of a search warrant, and the search warrant is void, and defendant's motion to suppress the evidence and quash the search warrant should have been sustained. Sec. 11, Art. 2, Mo. Constitution; Amendment 4, U.S. Constitution; State v. Lock, 259 S.W. 116; State v. Owens, 259 S.W. 100; State v. Tunnell, 259 S.W. 128; Cooley on Const. Lim. (7 Ed.) p. 429; Gouled v. United States, 255 U.S. 298. (2) The evidence in this case having been illegally obtained cannot be used against defendant. State v. Owens, 259 S.W. 100.

Jesse W. Barrett, Attorney-General, and Wm. L. Vandeventer, Special Assistant Attorney-General, for respondent.

(1) Under the late holdings of this court the search warrant was illegal and void. State v. Owens, 259 S.W. 100; State v. Lock, 259 S.W. 116; State v. Tunnell, 259 S.W. 128; State v. Smith, 262 S.W. 65. (2) But the property introduced in evidence was not obtained by the search warrant, but was discovered by the officers in a woodland belonging to defendant and before they had arrived at his residence. This evidence was admissible. Brent v. Commonwealth, 194 Ky. 504. (3) All these offenses could be charged in separate counts of the same information. Sec. 6596, R. S. 1919; State v. Berry, 255 S.W. 337.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

The information is in four counts, based on Section 6588, Laws 1921, page 413. The first count charges that the defendant, on the day of April, 1923, at Ralls County, unlawfully had in his possession a certain copper still, used and fit for use in the production of intoxicating liquor, contrary to the form of the statute, etc. The second count charges that the defendant unlawfully had in his possession on the day of April, 1923, another certain copper still, etc. The third count charges that the defendant on the day of April, 1923, unlawfully had in his possession certain fermenting tubs, to-wit, nine barrels, used and fit for use in the production of intoxicating liquors, etc. The fourth count was withdrawn. The defendant was tried and convicted on the three counts, and his punishment assessed on each count at a fine of $ 300 and imprisonment for thirty days in the county jail. Motions for new trial and in arrest were overruled and the defendant appealed.

On an affidavit of the prosecuting attorney, a warrant was issued by a justice of the peace on April 26, 1923, directed to the sheriff, reciting the affidavit, and commanding him to search a certain tract of land in Ralls County and the buildings and dwelling thereon occupied by the defendant, and, if any intoxicating liquor be found, or any still, doubler, worm, worm tub or fermenting tub be found thereon or thereabouts, that he apprehend and hold the same until legally disposed of. Under this warrant the sheriff, in the day time, went to the tract of land occupied by defendant and found thereon two copper stills, two worms, nine barrels containing about 450 gallons of mash, which by test contained 8.1 per cent of alcohol by volume. They were found in a gully, or hog wallow, partly hidden by brush and trees. A well-worn path led from this place to the defendant's house. There were wagon tracks from the defendant's barn to the place where the stills, barrels, etc., were found.

The information was filed May 28, 1923. The defendant filed a motion to quash the search warrant and suppress the evidence for the reason that the search and seizure were made without a lawful warrant and were violative of his constitutional rights against unreasonable searches and seizures, as provided by Section 11 of Article 2 of the Constitution. This was overruled on June 6, 1923, and the cause was continued to the next (the November) term of court. On November 7, 1923, the defendant moved to quash the information for the reason that it did not state facts sufficient to constitute an offense.

The information was not sworn to or verified, the oath thereto, not having been signed until the jury was impaneled and sworn to try the case. The bill of exceptions recites that after the jury was sworn, the court permitted the prosecuting attorney to sign the affidavit to the information. No objection was made or exception saved to this action of the court, hence the matter is not here for consideration. The sufficiency of the information is not challenged in the brief by appellant's learned counsel. It is in the language of the statute. It is not claimed that the information is multifarious. [See State v. Berry, 255 S.W. 337.]

I. It is insisted that the court erred in overruling the motion to quash the search warrant and to exclude at the trial the evidence obtained by the sheriff in the execution thereof. This motion was heard and overruled by the court at the May term. No exception was saved at the time by a term bill, but the cause was continued until the succeeding term of court without leave to file a term bill. After the trial, appellant filed a bill of exceptions in which is set forth the motion to quash the search warrant and the evidence offered in support thereof. It has long been held that exceptions must be saved to the orders and rulings of the court by a term bill filed at or under leave granted at the term at which they were made, "and that such exceptions are not sufficiently saved by bill of exceptions filed under leave given at a subsequent term." [Kline Cloak & Suit Co. v. Morris, 293 Mo. 479, 240 S.W. 96, 99.]

II. At the trial, when the State offered to prove by the sheriff that he found the stills, worms and barrels of mash in the use and possession of the defendant and on his premises, as heretofore set out, the defendant objected on the grounds embodied in his motion to quash the warrant. This objection was properly overruled; it was res adjudicata. He took no exception to the ruling of the court by bill filed at the term at which the ruling was made and he was precluded from having the same objections reconsidered at the trial at a subsequent term of court, and from having them reviewed on appeal. [City of St. Louis v. Querl Lbr. Co., 210 S.W. 21.]

We have held that when the evidence is offered and...