The appellants, husband and wife, were convicted in the Circuit Court of Dent County on a charge of unlawfully possessing intoxicating liquor, a misdemeanor, and the punishment of each was assessed by the jury at a fine of $200. Because of certain constitutional questions raised, an appeal was allowed to this court from judgment in accordance with the verdict.
The amended information, filed April 6, 1925, and based on Section 6588, Laws 1921, p. 414, charges that the defendants, at Dent County, on February 6, 1925, unlawfully had in their possession certain intoxicating liquors, to-wit, whiskey for beverage purposes, etc. On the same day the defendants filed a motion to quash the search warrant and suppress evidence discovered on the execution of the warrant.
There are ten specifications in the motion, but they may be summarized as follows: (a) The complaint upon which the search warrant was issued does not state facts authorizing its issuance; (b) it was issued and served in violation of Section 11 of Article 2 of the Constitution of Missouri, and does not describe the place to be searched or the person or thing to be seized, and was not based upon probable cause and there was no finding of probable cause; the affidavit sets forth opinion and hearsay evidence and no statement of facts is contained therein and there is no finding of facts by any courts of
justice that the facts set forth in the application are true, and no testimony offered upon which the justice could find any probable cause for the issuance of the warrant; (c) because Section 25, Laws 1923, p. 244, is in violation of the Constitution of Missouri and the Fourth Amendment to the Federal Constitution providing against unreasonable search and seizure in homes, papers and effects; said section does not specify the particular facts the application shall set forth, nor the grounds upon which the application for search warrant might be based; said section authorizes the officer to take and destroy grain products, etc., fit for use in the lawful manufacture of intoxicating liquor, upon the judgment and opinion of the officer serving the warrant, without the judgment of the court, and the arrest of persons found using them without any warrant; (d) said search warrant violates Section 23 of Article 2 of the Constitution of Missouri, compelling the defendant to furnish evidence against himself by the unreasonable search and seizure authorized by Section 25 aforesaid, and by authorizing the search warrant without probable cause, supported by oath or affirmation reduced to writing; (e) because neither the sheriff nor any other prohibition agent had any knowledge of the storing of intoxicating liquor or the possession thereof by the defendant on said premises; and (f) said Section 25 deprives the defendant of his property and liberty, without due process of law, and violates Section 30 of Article 2 of the Constitution of Missouri, in permitting the arrest of the defendant and the destruction of the property described in said section without the judgment of any court of record and without giving the defendant an opportunity to be heard before any court prior to the taking and destruction of said property.
In the application for the search warrant read in evidence, Clyde C. Cope, prosecuting attorney, upon his oath states that in the hereinafter described buildings on the premises of Newton Halbrook, in a log building about 36 feet long and 16 feet wide, with a wagon shed attached, said log building being divided with a driveway about
the center and having a corn crib in the west end, said building being about 48 yards from the house where Newton Halbrook lives on a farm owned by Mary Halbrook (here the land is specifically described) in Dent County, intoxicating liquor is being unlawfully stored and kept; that thereat and therein is also being used and kept vessels, fixtures and equipment and parts thereof fit for use in the unlawful manufacture and production of intoxicating liquor. The application then prays for the issuance of a warrant to search the premises described. It was sworn to before Ike Epstein, justice of the peace.
There was also filed with said justice the affidavit of John R. Welch, Sheriff of Dent County, in substantially the same language, with this addition: that intoxicating liquor, containing more than one-half of one per cent of alcohol per volume, is being manufactured, stored, kept and sold, and that men were seen coming from the premises in an intoxicated condition, and that men that came from said premises have had fruit jars with intoxicating liquors, and intoxicated persons have told that they obtained their liquor from said Newton Halbrook, and affiant has seen intoxicated persons in the neighborhood of said Newton Halbrook's place and leaving said premises.
Thereupon the justice of the peace issued a warrant directed to the Sheriff of Dent County or any constable, reciting that whereas Clyde C. Cope, prosecuting attorney, had filed his verified application and petition in writing (setting it out in full), be it known that, from the facts set forth in said verified petition and the showing thereby and thereupon made, it is found by me that there is probable cause to believe that the laws of the State of Missouri in relation to the prohibition of intoxicating liquor, as set forth in the statutes in such cases made and provided, are being violated at and in the buildings, structures and upon the premises and place described in said petition and in the manner therein charged. The warrant proceeds to command the officers
named to search the premises described for intoxicating liquor and for equipment, utensils, etc., fit for use in the manufacture of intoxicating liquor, and if any be found, that they seize and take possession of the same to be dealt with according to law, and that they arrest any person or persons found using or in possession or control of any such intoxicating liquor, article or thing, that such persons may be dealt with according to law, and that they make due return, etc.
Indorsed on said warrant is the following return: "I certify that I executed the within writ in the County of Dent on the 6th day of February, 1925, by searching the within described premises and finding and seizing a 5-gallon jug containing intoxicating liquor. (Signed) John R. Welch, Sheriff."
We quote from the statement of learned counsel for the appellant:
"In support thereof [the motion to quash the search warrant] they [appellants] offered the testimony of the prosecutor Cope, and Sheriff Welch and Justice Epstein. The defendants asked questions of Cope and Welch to ascertain if they had been to defendants' premises prior to the making of the affidavits, or if they had any knowledge of the facts set forth in the affidavits; all of which was ruled out on objection of the State and defendants excepted."
Defendants, however, made no offer to prove that the affiants had no personal knowledge of the facts stated in the affidavits.
The sheriff and his deputy, Bates, testified in substance that on the way to Halbrook's residence they met Mrs, Halbrook on horseback and informed her of their purpose; that Mrs. Halbrook returned to her house in advance of the officers. She went into the corn crib, came out, closed the door, backed up against it with a club in her hands and, with oaths, told the officers she would kill them if they attempted to enter the crib. The sheriff, who had previously read the warrant to her, again read it to her. The officers detected the odor of
whiskey, pushed Mrs. Halbrook aside, entered the crib and saw a five-gallon jug inverted on a pile of corn in the shuck and found it to be saturated with whiskey as far down as they could reach. They seized the jug, which still contained a little whiskey, and produced it at the trial, with its contents. About the time the officers seized the jug, the defendant Newton Halbrook arrived and demanded that they allow him to shake the jug, which the sheriff declined to do. The defendants and others testified that Halbrook kept the jug solely for gasoline used in filling the tank of his automobile. Mrs. Halbrook testified: "We had it [the jug] in there filled with gasoline." She followed the sheriff to his car and asked him if there was anything in the jug.
The court overruled the motion to quash the search warrant and to suppress the evidence found on the search, to which ruling the defendants saved an exception.
I. The evidence offered at the trial was ample to justify the finding of the jury that the defendants unlawfully possessed intoxicating liquor as charged in the information. The main contentions by appellants' learned counsel, as set forth in the motion for new trial, are that Section 25, Laws 1923,Valid p. 244, violates Section 11 of Article 2 of ourStatute. Constitution; that the search warrant was void on its face and that the search and seizure of the alleged evidence against defendants were in violation of the defendants' rights under the search and seizure clause of the Constitution.
Section 11 of Article 2 reads: "That the people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the person or thing to be seized, as nearly as may be; nor without probable cause, supported by oath or affirmation reduced to writing."
Section 25, Laws 1923, reads in part: "The Attorney-General of the State of Missouri, or the prosecuting attorney of any county, or any prohibition enforcement officer, is hereby empowered to file in the circuit court, criminal court, court of criminal correction, or any other court having criminal jurisdiction in the county, or before the judge thereof in vacation, or justice of the peace, an application for a search warrant, which application shall be by petition setting forth substantially the facts upon which the same is based, describing the place to be searched and the thing or things to be seized as nearly as may be, which petition shall be verified by the oath of the officer filing the same. If it shall appear to the satisfaction of the court in which said petition is filed, or the judge thereof in vacation, or justice of the peace before whom said petition shall be filed, either from the facts set forth in said petition or from evidence heard thereon, that there is probable cause to believe that intoxicating liquor is being unlawfully manufactured, sold, stored or kept in any building, structure, or at any place described in said petition, within said county or transported as in this article defined, contrary to the provisions of this act or of any of the provisions of Article 7, Chapter 52, Revised Statutes 1919, or acts amendatory thereof, or that thereat or therein is (being) being used or kept any still, doubler, worm, worm tub, mash, mash tub, fermenting tub, vessel, fixture or equipment, or any part or parts thereof used or fit for use in the unlawful manufacture or production of intoxicating liquor, it shall be the duty of such court or such officer before which or whom said petition was filed, to issue or cause to be issued a search warrant thereon, which search warrant shall substantially recite the facts set forth in said petition, and it shall thereupon be the duty of the officer executing such search warrant forthwith to enter any such building, structure, place or vehicle, either in the daytime or nighttime, by force if necessary, and to remove therefrom and destroy any intoxicating liquor, malt, mash and all grain products, fruit or fruit
products found therein or thereat which have reached such a stage of fermentation as to be unfit for any use save in the unlawful manufacture of intoxicating liquor."
The section further declares intoxicating liquor unlawfully manufactured, stored, kept, etc., and the containers thereof, etc., to be contrabrand, and no right of property shall be or exist in any person or persons, etc., but all such property, articles and things, except intoxicating liquor, shall be sold upon an order of the court, etc.
It is apparent that Section 25, supra, in authorizing the issuance of a search warrant, is not in conflict with Section 11 of the Bill of Rights. It requires that the petition therefor shall set forth substantially the facts upon which the same is based, describing the place to be searched and the thing or things to be seized as nearly as may be, which petition shall be verified by the oath of the officer filing the same. If it shall appear to the satisfaction of the court in which said petition is filed or the judge thereof in vacation, or justice of the peace before whom the petition is filed, either from the facts setforth in said petition or from evidence heard thereon, that there is probable cause to believe that intoxicating liquor is being unlawfully manufactured, sold, stored or kept in any building, etc., the warrant shall issue.
The petition for the issuance of the search warrant, reduced to writing, clearly set forth that intoxicating liquor was unlawfully kept and stored in a certain log building definitely described and located; this was upon the oath of the prosecuting attorney and supported by the affidavit of the sheriff. These were filed with the justice who found there was probable cause to believe that the law in relation to the prohibition of intoxicating liquor, as set forth in the statute in such cases made and provided, was being violated.
It is insisted that before a warrant may issue the State must show, not probable cause, but direct and absolute proof must have been adduced in the instant case that the defendants had intoxicating liquor in their possession
in the particular building designated in the petition. In our opinion the sworn statement of facts in the application by the prosecuting attorney was a sufficient showing of probable cause to meet the constitutional requirement.
In State v. Lock, 302 Mo. l.c. 412, 259 S.W. 116, we said: "The sworn statement of the prosecuting attorney, the support on which the search warrant issued, is the only verified document to which we may look for probable cause; and if it contains any statement of the fact from which probable cause may be inferred, it complies with the Constitution. If no statement of fact is stated therein, from which probable cause may be inferred, the Constitution and defendant's rights thereunder, have been violated." And on page 415: "Search warrants, based on the belief of affiant, have been condemned from the early English writings to the present day. An early English treatise, regarding search warrants and probable cause, is found in 2 Hale, Pleas to the Crown, 150, where it is said: `They are not to be granted without oath made before the justice of a felony committed, and that the party complaining hath probable cause to suspect they are in such a house or place, and do show his reasons for such suspicion. And, therefore, I do take it, that a general warrant to search in all suspected places is not good, but only to search in such particular places, where the party assigns before the justice his suspicion and the probable cause thereof, for these warrants are judicial acts, and must be granted upon examination of the fact.'"
In State v. Tunnell, 302 Mo. l.c. 437, 259 S.W. 128, WHITE, J., said: "The search warrant was unauthorized for several reasons. It could not issue except upon probable cause as provided in Section 11, Article II, of the Constitution of Missouri. No facts were stated in the affidavit filed by the prosecuting attorney which would justify the issuance of the warrant. This matter was exhaustively and ably elaborated by DAVIS, C., in the case of State v. Lock, ante page 400, decided at the present term of this court."
In 33 Corpus Juris, 676: "Where an affidavit, upon which a warrant was issued, contains positive averments of facts justifying the issuance of the warrant, its validity is not affected by proof aliunde that the facts therein positively stated were in reality stated upon information and belief." See cases cited in notes; Bowen v. Comm., 251 S.W. (Ky.) 625; State v. Czckay, 218 Mich. 660, 188 N.W. 376; People v. Flaczinski, 194 N.W. 566.
The clear purpose of the constitutional provision is to limit and regulate the authority of the courts to reasonable search and seizure "and thereby abolish the power of the courts to exercise their jurisdiction as instruments of injustice and oppression of the people of the State and Nation." [State ex rel. v. Anderson,270 Mo. 545, 194 S.W. 268.]
Section 12 of our Bill of Rights provides that no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information. Section 3849, Revised Statutes 1919, provides for the filing of informations by the prosecuting attorney; they shall be signed and verified by him or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information; the verification by the prosecuting attorney may be upon information and belief. Under the Constitution and the statute the prosecuting attorney, without having personal knowledge of the facts, may, by information, initiate criminal proceedings against any person, even for a non-bailable offense, subject to the right of the accused to a preliminary examination.
It is essential to the proper enforcement of the law that the prosecuting attorney should be invested with this power, otherwise society would be deprived of adequate protection, and criminals, operating secretly, might go unwhipped of justice. It was said by BURGESS, J., in State v. Kyle, 166 Mo. l.c. 303, 65 S.W. 763: "The terms `information' and `indictment' as used in the Constitution, are to be understood in their common-law
sense. [Ex parte Slater, 72 Mo. 102; State v. Kelm, 79 Mo. 515.] In the Kelm case it was held that the term `information' as used in Article 2, Section 12, of the State Constitution of 1875, was to be understood in its common-law sense, that is, a criminal charge which at common law is presented by the Attorney-General, or if that office is vacant, then by the Solicitor-General of England, and in this State by the prosecuting attorneys of the respective counties, who exercise the same powers as are exercised by the Attorney-General or Solicitor-General of England, that is, the power to present informations under their official oaths."
If the unsupported information of the prosecuting attorney is deemed probable cause for the arrest and incarceration of persons accused by him of a felony, it seems unreasonable that, if this public official, charged with the enforcement of the law for the protection of society, should, while acting under his official oath and in the exercise of his discretion, file a petition for a warrant to search for stolen goods or for evidence of the unlawful manufacture, possession or transportation of intoxicating liquors, process should be refused unless and until he should produce further proofs in support of such petition. We are of the opinion that upon principle and authority the appellants' contentions are without merit; that the search warrant was issued in compliance with the Constitution and the statute; that Section 25, supra, is in harmony with the search-and-seizure clause of our Constitution and that the court properly excluded evidence that the prosecuting attorney had no personal knowledge of the truth of the facts stated in his petition for the issuance of the search warrant, and that the motion to quash the search warrant and to suppress the evidence found under the warrant was properly overruled.
II. We are not called upon to consider the contention that Section 25 is violative of our Constitution because
it authorizes the sheriff in serving a search warrantMoot to take, remove and destroy grain products, fruit,Question. syrup, sugar or other fruit products fit for use in the lawful manufacture of intoxicating liquor upon the judgment of the officer, without the intervention of the court or any other lawfully constituted authority, since that is merely a moot question.
III. The fourth amendment to the Federal Constitution prohibiting unreasonable search and seizure refers only to Federal officers and agents and has no application to searches and seizures under State laws. [State v. Owens, 302 Mo. 348 (3).] The conviction of the defendants for the offense charged is not a denial of due process of law. [State v. Combs, 273 S.W. 1037.]
IV. At the close of the evidence, the defendants requested the court to instruct the jury to find each of the defendants not guilty. This was properly refused as the evidence warranted a finding that both of the defendants were guilty as charged. Thereupon the court gave three instructions for the State. The first and second instructions read:
"1. The court instructs the jury that if you believe and find from the evidence that the defendants, or either of them, in Dent County, Missouri, on or about the 6th day of February, 1925, did willfully have in his, her or their possession certain intoxicating liquor, to-wit, whiskey, for beverage purposes, you will find him, her or them so found by you to have possessed such whiskey, guilty as charged in the information, and assess the punishment of each one so offending at a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for a term of not less than thirty days nor more than twelve months, or by both such fine and imprisonment.
"You may convict either or both of the defendants, or acquit either or both of the defendants, as you may find from the evidence under these instructions that
either, neither, or both of them are guilty or not guilty.
"`Wilfully' means intentionally and not by accident or mistake.
"2. The court instructs the jury that all persons who act together with a common intent in the commission of a crime are equally guilty, and a crime so committed by two persons jointly, is the act and crime of both and of each one so acting and intending."
Instruction 3 is the usual one on the credibility of the witnesses. The court, at the request of the defendants, gave instruction numbered 4, as follows:
"The defendant is presumed to be innocent and this presumption remains until the State, by evidence, establishes his guilt to your satisfaction and beyond a reasonable doubt.
"If, therefore, upon a consideration of all the evidence, you have a reasonable doubt of the defendant's guilt, you should give him the benefit of such doubt and acquit him, but to authorize an acquittal upon the ground of doubt alone it should be a reasonable doubt and not the mere possibility of the defendant's innocence."
Thereupon counsel for defendants asked the court to instruct "on all the law points involved in the case." The court asked counsel to suggest the point on which he desired an instruction. Counsel asked "an instruction on the law in regard to man and wife." The court suggested that counsel prepare an instruction "on that point." Counsel replied he couldn't do it, and asked the court to do it. THE COURT: "That instruction is withdrawn and the court offered to give Instruction A on part of defendants, but defendants not desiring such instruction it was not given to the jury." Instruction A reads:
"The court instructs the jury that if you believe and find from the evidence that the defendant, Ida Halbrook, jointly with her husband, Newton Halbrook, had possession of whiskey as charged in the information, then the law in the absence of other and further culpatory
and explanatory evidence against the defendant, Ida Halbrook herself, presumes that said Ida Halbrook acted under the coercion of her said husband and not of her volition; and therefore you should find her not guilty unless you further find and believe from the evidence that in possessing such whiskey she acted freely and voluntarily and independent of any incitement of her said husband."
Defendant requested the court to give the following instruction to the jury on their behalf, which was by the court refused: "Unless the possession is shown to have been joint by the two defendants, then neither can be convicted."
The bill of exceptions reads: "That instruction is withdrawn and the court offered to give Instruction A on part of defendants." The State concedes that Instruction 4 was withdrawn. That seems to be the clear meaning of the excerpt. No exception was saved to its withdrawal.
V. Appellants assign error in the giving of Instruction 2; that it is in conflict with the rule of law relating to crime by a wife in the husband's presence. We have given a summary of the State's evidence, showing that Mrs. Halbrook resisted the officers and, with a club in her hand, threatened toHusband kill them if they attempted to search the corn crib.and Wife. Her husband was absent, and off the premises, until after the officers made the search and seizure. Mrs. Halbrook testified that her husband had gone to Salem and that she told the officers: "I would rather they wouldn't do it." In her testimony, referring to the jug found in the crib, Mrs. Halbrook said: "We had it in there filled with gasoline."
In State v. Miller, 162 Mo. l.c. 259, 62 S.W. 692, GANTT, J., said: "Marriage does not take from the wife her general capacity to commit crime, but as it casts upon her duty of obedience to and affection for her husband, the law indulges a presumption that if she commits an offense in his presence, it was the result of his
constraint or coercion, and in the absence of proof to the contrary, excuses her. [1 Bishop, New Crim. Law, sec. 357.] This presumption is not conclusive but is rebuttable. [State v. Ma Foo, 110 Mo. 7.]"
In annotations to Morton v. State, 4 A.L.R. l.c. 267, it is said: "If the wife acted of her own free will in committing the criminal acts complained of, her coverture is no defense." [Citing many English and American cases.] See also State v. Keithley, 142 Mo. App. 421, 127 S.W. 406; State v. Bragg, 220 S.W. 25 (6), and Kelley's Crim. Law, sec. 17.
In 30 Corpus Juris, 792: "It is, however, necessary that the husband should be `present' in the sense just mentioned, and where he is so far absent as not to exert a material influence, there will be no presumption of coercion, the mere fact of marriage being insufficient to raise the presumption."
It is apparent, therefore, that there was evidence from which the jury could find that Mrs. Halbrook was freely acting in conjunction with her husband in keeping and possessing the jug of whiskey and there was no error in giving this instruction. However, if the rule were as contended for by learned counsel, it was cured by the offer of the court to give Instruction A, which was declined. This instruction was, as we have seen, too favorable to the defendant Mrs. Halbrook, there being no presumption that she was acting under her husband's compulsion.
VI. The court erred, however, in withdrawing instruction numbered 4, but no exception was saved thereto. The case went to the jury without an instruction on reasonable doubt, the presumption of innocence and the burden of proof. Section 4025, Revised Statutes 1919, reads in part: "Fourth: whether requested or not, the court must instruct the jury upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant isfound guilty, for setting aside the verdict of the jury andgranting a new trial."
The statute, as appears from the clause italicized, is mandatory in cases of felony only and has no application in cases of misdemeanor. The maxim, expressio unius est exclusioalterius, applies. This maxim, as has been said, "is sensible and useful in logic and law." "It is a universal and familiar rule;" "a rule both of law and equity;" is "the well known maxim of construction and a very sound one." [25 C.J. 220, note a.]
Moreover, the defendants saved no exception to the withdrawal of defendants' Instruction 4 on reasonable doubt, the presumption of innocence and the burden of proof, and failed to call attention in their motion for new trial to the failure of the court to instruct on these questions. The requested instruction on joint possession was properly refused. Other assignments of error are without merit. The judgment is affirmed. Railey, C.,
concurs in result; See State v. Cardwell.