State v. Marshall

297 S.W. 63, 317 Mo. 413, 1927 Mo. LEXIS 615

• Court: Supreme Court of Missouri
• Decided: June 23, 1927
• Status: Published

Opinion

WHITE, P. J.

August 17, 1925, defendant, charged with, possession of intoxicating liquor, was found guilty by a jury in the Circuit Court of Shelby County, and punishment assessed at a fine of $400, and imprisonment in the county jail for one year. The charge was a misdemeanor, under Section 6588, Revised Statutes 1919, as amended in the Act of 1921. [Laws 1921, p. 414.] The defendant in the trial court raised certain constitutional questions which were ruled against him. Accordingly he sued out a writ of error in this court which has jurisdiction.

On January 30, 1925, the defendant operated a soft-drink parlor, on Deed Avenue, in the city of Macon. On that day the Deputy Sheriff of Macon County, Jack Williams, armed with a search warrant, searched the premises there and found a quart bottle about one-third full of com whiskey; also found other intoxicating liquor, according to the testimony of the officer. The defendant strenuously objected to the sufficiency and the competency of the testimony in relation to that matter. He testified that he sold soft drinks, jobbed empty bottles, etc., but handled no intoxicating liquor. He was present at the time the deputy sheriff searched the place, and denied that any intoxicating liquor was found. He offered evidence to the effect that his general reputation for truth and veracity was good. The evidence was excluded on objection of the State. Before the trial he filed a motion to quash the jury panel, a motion to quash the search warrant, a motion to quash the information, and a motion to disqualify the judge, all of which were overruled, and each of such rulings is assigned here as error.

The information was filed in the Circuit Court of Macon County. An application for change of venue was filed before Judge Drain of that court, and was sustained, and Judge Hayes of the Tenth Judicial Circuit was called to try the case. The defendant then filed an application for disqualification of Judge Hayes, which was overruled. The defendant then filed application for change of venue on account of bias and prejudice of the inhabitants of Macon County. This application, supported in due form by proper affidavits, was sustained, and the case was sent to Shelby County, in the same circuit as Macon County, where it was tried.

I. The plaintiff in error complains of the refusal of Judge Hayes to disqualify himself on appellant’s motion. This motion was filed and this ruling had in Macon County. No term bill of exceptions was filed in Macon County. The court took evidence on that motion and certain records were introduced. The record and proceedings in Macon County were certified by pj g Easley, Clerk of the Circuit Court of Macon County, and transmitted to Shelby County. Attached to that record is what is designated as a bill of exceptions, purporting to contain the evidence taken on a plea to the jurisdiction, or rather the motion to disqualify Judge Hayes. This document purports to be certified by the official stenographer. It is not included in the clerk’s transcript, it is not certified by the clerk, it is not signed by the judge; there is nothing to show that it was ever filed in Macon County. It is not incorporated in the bill of exceptions filed in Shelby County, and could not properly be incorporated in that bill of exceptions. In order to be a matter of record for our consideration it would have to be incorporated in a bill of exceptions and duly filed in Macon County. Therefore, the alleged disqualification of Judge Hayes to hear the case is not before us for consideration.

II. Error is assigned to the overruling by the court of the motion of plaintiff in error to quash the panel on the ground that the statute was not1 complied with in impaneling the jury. All we know about that appears in the assignment of errors in the brief. No such motion appears in the record which we have for consideration. It is not in the bill of exceptions. If it were it would not prove itself. [State v. Murphy, 292 Mo. l. c. 287.] There is no evidence in the record showing that the jury was not properly impaneled, according to law. No motion-to quash the information appears in the bill of exceptions.

III. It is next claimed that the motion to quash the search warrant was improperly overruled, because'such search warrant was invalid for several reasons mentioned, and the search was in violation of the .defendant’s constitutional rights. '

The application for a search warrant was ified in Macon County. A copy df it was sent with a transcript to Shelby County. The motion to quash doe~ not appear in the bill of exceptions filed in Shelby County. We might on that account refuse to consider the matter, but the court took evidence upon the application. The application, the search warrant, and the order issuing it were introduced in evidence. In taking that evidence the court treated it as if the motion were present, and since a copy of it was in the transcript from Macon County, we will consider it. We have to strain a point to consider this evidence ~or it does not appear under the heading "Bill of Exceptions." In order to consider it we will presume the heading is misplaced.

The applicatio.n for the search warrant was presented by the prosecuting attorney, verified, stating that in a certain building in the possession of Tom Marshall and operated as a soft-drink p~rlor, describing the location of the premises in the City of Macon, County of Macon, "intoxicating liquor is being unlawfully manufactured, sold, stored and kept," etc., and praying for a search warrant. The search warrant was signed by the Clerk of the Circuit Court of Macon County, January 30, 1925. It recites that Glenn B. Evans, prosecuting attorney, on that day "filed before me, the undersigned Clerk of the Circuit Court,'' etc., his duly veri~ed application, etc., then concludes as follows:

“Be it known.from the facts set forth in the said verified petition and showing, thereby and thereupon made (and upon the order of said court herein), it is found by me that there is probable cause to believe that the laws of the State of Missouri,” etc., “are being violated. ’ ’

It commanded the sheriff to make the search.

“Given under my hand this 30th day of January, 1925, at my-

“H. S. Easley, Clerk, Circuit Court of Macon

County, Mo.”

The point is made that the circuit clerk, not being a judicial officer, could not make a finding of fact, and could not order the warrant. There is no doubt about the correctness of the position that the clerk could not find probable cause and issue the search warrant on his own authority.

The argument of plaintiff in error runs thus: the recital in the search warrant that the application was “filed before me the undersigned clerk, ’ ’ shows it was not filed in the court. The further recital “it is found by me that there is probable cause,” means that the finding was made by the clerk; that it was the clerk to whom the application was presented, who made the finding of probable cause, and who ordered the issuance of the warrant. The application purports to be presented to the circuit court, because it begins, “In the Circuit Court of Macon County,” and continues, “Your petitioner prays.” It is therefore addressed to the circuit court. The search warrant then was issued in the name of the State of Missouri.

The order of the circuit court in relation to the matter recites: “Now comes Glenn B. Evans, Prosecuting Attorney of Macon County, and files his petition, praying that the search warrant be now issued,” etc. Then follows a description of the premises, and statements in the application. It proceeds: “Whereupon the said petition is seen and considered by the court and the evidence of witnesses duly sworn is heard in support thereof. And it appearing to the court the said application is supported by credible evidence, it is ordered by the court that the clerk of this court issue a search warrant as herein prayed.”

The recital in the search warrant itself that upon “showing made and upon the order of the court” the finding was had, the order reciting that the petition for the search warrant was filed in the court, that the court took evidence upon it, and ordered the issuance of the search warrant — all this sufficiently proves that the application was presented to the court and the court found the existence of probable cause.

Section 25, Laws 1923, page 244, provides that upon the filing of an application, and it appearing to the satisfaction of the court that there is probable cause, a search warrant shall be issued “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,” etc. The search warrant is not required to recite the order of court finding probable cause. It is entirely sufficient for the purposes of the officer that the facts stated in the petition are recited so that he may know the place to be searched. Therefore the recital in the warrant of the finding of probable cause by the clerk may be regarded as surplusage.

The order of the court shows the probable cause was found by the judge. The clerk’s loose method of writing the warrant does not nullify the order. We cannot presume that the court ordered one search warrant and the clerk issued another. Only one was authorized and that must have been the one issued.

While the order of the court does not in express terms say that the court found probable cause, it does say that from the evidence of witnesses the application was supported by credible evidence, which application alleged that intoxicating liquor was kept at the place mentioned. Necessarily if the court found that evidence of that fact was credible, he found probable cause. The existence of probable cause is a conclusion from the facts found.

It is further claimed that the search warrant is invalid because the application does not state the facts upon which the prosecuting attorney knows that intoxicating liquor was kept at the place mentioned. It states directly that intoxicating liquor was stored and kept there. This, in some jurisdictions, is held to be a mere conclusion and insufficient. In recent cases we have held that sufficient in this State. Aside from that, the court here, instead of taking the application as conclusive, took evidence of witnesses who were sworn, found that the application was supported by credible evidence, and for that reason found probable cause. Under Section 25 of the Act of 1923, if it shall appear to the satisfaction of the court, “either from the facts set forth in said petition or from evidence heard thereon that there is probable cause, . . . he may cause to be issued thereon a search warrant.” In the ease of State v. Stevens, 292 S. W. 36, l. c. 37-38, in an attack upon a search warrant, in order to sustain its validity, we held it was sufficient if it appeared to the satisfaction of the court that there was probable cause, and that might appear either from the petition itself or from the evidence heard thereon. If the application was insufficient on its face to authorize the finding of probable cause, either from insufficient statement of facts or for any other reason, and the court became satisfied from evidence which he took at the time that there was probable cause, he would be authorized to issue -the warrant. Under Section 11, Article II, of the Constitution, the existence of probable cause need not necessarily appear in the application for the warrant. But it must be “supported by oath or affirmation reduced to writing.” The record is silent as to whether the evidence in this case was reduced to writing. We may presume that the court did its duty in that respect. The evidence taken or the motion to quash the search warrant throws no light upon the matter. The defendant made no point that evidence in support of the application for the warrant was not in writing, but confined his objections to other alleged infirmities considered above.

We think the search warrant valid, so far as the record shows.

IV. Error is assigned to the admission of the evidence of Deputy Sheriff Williams, who testified to the finding of corn whisky in defendant’s place of business, and of J. B. Stokes, who testified to its alcoholic content. "Williams testified that he found the bottle containing the liquid, which he thought was corn whisky. He did not test it, but' he smelled it; he had experience in matters of that kind in enforcing the prohibition law, and swore that to the best of his knowledge it was corn whisky. The bottle was marked “Exhibit A,” and placed in the hands of the sheriff. .There seems to be no objection on the ground that the bottle was not in custody of the officers all the time. Stokes testified that he was a graduate of a medical college, and that he had experience in testing alcoholic content of liquids by the specific gravity. He took Exhibit A and made a test showing that its alcoholic content was fifty per cent. One objection is that because the liquor was tested on the day of trial the jury had no right to consider it. There was no evidence, it is argued' that it was in the same condition as when it was found — that it had not been tampered with.

Glenn Evans, prosecuting attorney, was sworn for the State and testified that the sheriff got the bottle containing Exhibit A, and other bottles, from his vault; that he had the bottles in his custody all the time after the sheriff delivered them to him; that the bottles which were delivered to him by the sheriff were the bottles which he delivered to Dr. Stokes for testing, and that after Dr. Stokes had tested them he returned them to the sheriff. The evidence is sufficient from which the jury could find that the bottles taken by the deputy sheriff in his search were kept in the custody of the officers, without change, from the time they were taken until the time they were produced at the trial. The evidence was admissible and sufficient from which the jury could find that the liquor found was intoxicating liquor within the meaning of the statute.

V. It is further claimed that the court should have instructed the jury upon that feature of the evidence. The jury were required to find in due form the facts necessary to convict. If the defendant desired or cared to instruct upon the effects of certain evidence, or the manner in which they should rece^Te certain evidence, he should have asked the court so to instruct. Absent such request there was no error in failing to instruct upon it. It is claimed further that "Williams and Stokes were not qualified to testify as to the quality of the liquor. We think the evidence is sufficient to show that Stokes was qualified, and that he made proper tests.

VI. Plaintiff in error claims there was error in the action of the court in refusing to allow him to prove his general reputation in the community in which he lived. He offered a witness who said be had-long known the defendant, Tom Marshall, and was asked if he was acquainted with Marshall’s . reputation for “truth and veracity.”' On objection of the State the evidence was excluded. The defendant then offered to prove by three other witnesses that the defendant’s reputation for truth and veracity in the community was good, and the court excluded the evidence. The rule is that a defendant on trial may prove he has a good reputation, as that reputation affects his character as a defendant. Defendant has no right to offer evidence to show that Ms reflation as a witness, for truth and veracity, is good until it is attacked by the State. That is the universal rule. [40 Cyc. pp. 2643, 2645; State v. Beckner, 194 Mo. l. c. 292.] Theréfore there was no error in excluding that evidence.

VI. Error is assigned to the failure of the court to define such terms as “com whisky.” “intoxicating liquor,” “potable,” “capable of being used as a beverage.” They are all terms in common use and defendant did not ask such definition nor present an instruction defining' them. Being terms having no -technical significance, it was not necessary to define them. [Page v. Payne, 293 Mo. l. c. 623; Sims v. Spelman, 209 Mo. l. c. 196.] “Corn Whisky” is a term so weil known and understood in Missouri that no definition' could - illuminate it. The same may be said of “intoxicating liquor.” The word “potable” has no technical significance. No amplification could explain the expression, “capable of being used as a beverage,” better than the words exactly used. They are all expressions used in the statute. They are not technical in the sense that they have any special significance as so used.

VII. It is claimed that instruction numbered 2 was erroneous, because it fixed the range of punishment at a fine of not less than one hundred dollars, nor more than one thousand dollars; and by imprisonment in the county jail for not less than thirty days nor more than one year; that this is the penalty fixed by Section 6604, Revised Statutes 1919, which was expressly repealed by the Act of 1923. The prosecution in this case was under Section 6588, Revised Statutes 1919, as amended by the Act of 1921 (See Laws 1921, p. 414), and the penalty for such violation is provided by Section 22 of the Act of 1923 (Laws .1923, p. 243). That section provides a penalty for violation of any of the provisions of Article 7, Chapter 52, which contains Section 6588, Revised Statutes 1919, wherein the punishment for the first conviction shall be a fine of not less than $200 nor more than- one thousand dollars, or by imprisonment for not less than thirty days nor more than one year. Tbe penalty fixed by tbe statute for tbe offense of wbicb tbe defendant was found guilty was exactly the same as that mentioned in tbe instruction except that tbe minimum fine was $200 instead of $100. That doubtless was error, but error favorable to the defendant, of wbicb be cannot be beard to complain.

VIII. Plaintiff in error complains of tbe refusal of instructions asked by him, numbers 1-A, 2-A, 3-A, 4-A and 5-A. Tbe assignment of error in that regard in tbe motion for new trial is lacking in particularity. [State v. Standifer, 289 S. W. 856.] Nevertheless, we have examined those instructions.

1-A is argumentative, regarding reasonable doubt, wbicb is properly covered by Instruction 3, for tbe State, and D-l and D-2 for the defendant. 2-A is argumentative, states abstract propositions, and the matter is properly covered in Instruction B-2, for defendant. 3-A is covered by Number 3 for tbe State.

4-A was properly refused because it requires tbe jury to find tbe defendant not guilty “if the State fails to prove any material fact to your satisfaction beyond a reasonable doubt.” The State might fail to prove satisfactorily many material facts which it attempted to prove, and yet make out a case on the facts it does prove. It would fail only if it did not prove any material issue or proposition necessary to constitute guilt.

IX. Complaint is made of remarks of the State’s attorney, and it is claimed a new trial should have been granted on account of bis improper remarks. Tbe prosecuting attorney in tbe course of his argument said he believed tbe defendant ha¿i |aw. that ^ wag £or the -j^y to say from the evidence in the case. An objection by tbe defendant was sustained, and the court said tbe argument was improper, and instructed the jury to disregard it. Tbe prosecutor then said: “We have interests over the county.” On objection the court ruled the statement improper, instructed counsel to avoid that line of argument, and directed tbe jury to disregard it.

Later the prosecutor proceeded as follows: “We do have a right to expect at your bands that you will uphold the law; that as men you will regard the evidence of the State and stand for the enforcement of the laws of your country. Not to seek vengeance on Tom Marshall, nor any other individual — we are not seeking that; but we are hoping thereby to stop, this bootlegging practice, this practice that has ruined boys and men, homes and women.” An objection to that remark was overruled.

The prosecutor then continued: “Take it, Gentlemen, and do what is right about it. Give this defendant a fair and impartial trial; but give the State and the people . . . 'give them too a square deal and fair consideration.” •

It will be noted that the court sustained the first and second, objections offered, and instructed the jury to disregard the statement of counsel'for the State, although appellant strenuously insists that the court erred. The court was not ashed to reprimand the State’s - attorney. He could not be convicted of error in failing to make a ruling which he was not asked to make. On the contrary, he ruled in both instances exactly as defendant’s counsel asked him to rulé.

On the third objection the prosecuting attorney spoke of the necessity of upholding the laws, of the hope to stop the bootlegging practice that had ruined boys and men, homes and women, and, after the objection the prosecutor admonished the jury to do what was right about it; to give the defendant a square deal, and give the State and the people a square deal. The court in that instance declined to sustain the objection.

The prosecutor has a right to call attention to the prevalence of crime in the community; to urge the jury to do its duty and to uphold the law; and to draw inferences from conditions as to the effect of failure to uphold the law. It is largely a matter within the discretion of the court. [State v. White, 299 Mo. l. c. 612-613; State v. ITart, 292 Mo. l. c. 98-99; State v. Reppley, 278 Mo. 343.] Of course, we do not know what argument was made- on behalf of the defendant. The reference to the bootlegging practice in the attorney’s speech, should have been avoided. If the defendant, under color of lawful business, was surreptitiously and secretly dealing in intoxicating liquor, he was in fact a bootlégger. But he was not charged with selling liquor. The prosecutor did not characterize him as a bootlegger. The most that can be inferred is that he was engaged in a business which encouraged bootlegging.

The only objection made was that the argument was improper “as to what boys it has ruined or homes it has wrecked. There is no evidence of any homes being ruined” and there was no evidence “as to intoxicating liquor.”

The reference to ruined homes was argumentative; an inference from prevailing conditions regarding illegal liquor traffic. An argument is not subject to reprimand for lack of evidence to support- it unless the speaker states specific fads which are unproven. Where he draws inferences, if his conclusion would reasonably arise from the general situation shown by the evidence, he is not out of order though his reasoning is unsound.

There was no objection because the argument suggested the commission of crimes other than the one for which defendant was on trial, or because defendant was not charged with selling liquor. Nor is any such objection made here. The trial court had no opportunity on the objection made, to reprimand the prosecutor for lugging a charge of other crimes into the case. Counsel argue here that the court should have reprimanded the prosecutor, but no such request was made at the time. In the heat and hurry of argument, the trial judge cannot be convicted of error for failing to rule in accord with a reason not presented to him.

Besides, considering the discretion of the court in that matter, as to whether it was harmful, we are unable to say that a reversible error was committed in not sustaining the objection and rebuking the attorney for using it.

"We .find no reversible error in the record, and the judgment is therefore affirmed.

All concur.