Summary
In State v. Cook, 322 Mo. 1203, 18 S.W.2d 58, 60, a search warrant requiring the officers to seize "all intoxicating liquors" found on the premises was held sufficiently definite and not to deprive the defendant of his "right to a trial by jury on the issue of the intoxicating character of the liquor seized."
Summary of this case from Search Warrant at 5 W. 12th St. v. MarcusOpinion
June 4, 1929.
1. APPELLATE JURISDICTION: Misdemeanor. The presence in the record of a constitutional question in a misdemeanor case fixes the appellate jurisdiction in the Supreme Court.
2. INTOXICATING LIQUOR: Possession: Sufficient Evidence. Section 6588, Laws 1921, page 414, makes it a misdemeanor for any person to possess intoxicating liquor in the State of Missouri, and the unexplained fact that home brew of one and one-half per cent alcohol content was found in defendant's home is sufficient to support a verdict that he was in possession thereof, and that it was intoxicating liquor within the definition of Section 6602, Revised Statutes 1919.
3. ____: ____: Exception: Burden of Proof. The exception contained in Section 6588, Laws 1921, page 414, making it a misdemeanor for any person to possess intoxicating liquor, that "nothing in this act shall be so construed as to prevent, or prohibit, the possession of intoxicating liquor in the private residence of the owner thereof, when such intoxicating liquor has been lawfully acquired and is being lawfully used," places upon a defendant, in whose home intoxicating liquor was found, the burden of showing that he lawfully acquired and was lawfully using such liquor.
4. SEARCH AND SEIZURE: State Law. The State has the undoubted right to enact and enforce its own prohibition laws, and is limited only by its own Constitution as to the character of premises upon which it may authorize a search for intoxicating liquor. And the fact that the National Prohibition Law makes a search unlawful does not render the search unlawful unless the State law makes it unlawful.
5. ____: ____: Dwelling House: U.S. Constitution. The present statutes contain no restrictions whatever against the issuance and use of search warrants for the purpose of searching any premises whatever, save only that the application for such search warrant and the search warrant itself shall describe the place to be searched and the thing or things to be seized as nearly as may be. The Missouri Constitution (Sec. 11, Art. 2) forbids only the unreasonable search of the citizen's home, and the statute (Sec. 25, Laws 1923, p. 244) does not conflict therewith. And the Fourth Amendment of the Constitution of the United States is a restriction only on the Federal Government, and not upon state governments.
6. SEARCH WARRANT: Description: Number of House and Block. The description in a search warrant is sufficient if a prudent officer charged with the duty of serving the writ and making the search will be able to locate with reasonable certainty the property described in the writ. If a description measures up to this rule, it is not insufficient because it does not describe the place to be searched by lot and block in a specified addition to a city or by a definite street number in a city.
7. SEARCH WARRANT: Description: Thing to be Seized. A search warrant and the application therefor sufficiently describe the thing to be seized if they describe it as "all the intoxicating liquors" found on the premises described. Such description does not deprive defendant of his right to a trial by jury on the issue whether the thing seized by the search was intoxicating liquor.
8. INTOXICATING LIQUOR: Instruction: Possession for Family Uses. It is not error to refuse an instruction telling the jury that defendant, charged with the possession of intoxicating liquor, cannot be convicted if he had possession of the liquor in his dwelling house and used it only for his own consumption and the consumption of his family and bona-fide guests. Such an exception is not found in the statute (Sec. 6588, Laws 1921, p. 414).
9. ____: ____: Paramount Statute. An exception found in the National Prohibition Act to the use of intoxicating liquors in one's own house for his own and his family use is not contained in the Missouri statute, and does not override or supersede state statutes on the subject, and an instruction based on such exception in the national statute as a defense should be overruled.
10. INSTRUCTIONS: General Assignment. Assignments in the motion for a new trial to the giving of certain numbered instructions, too general in character to be a compliance with the Act of 1925 (Sec. 4079, Laws 1925, p. 198), cannot be considered in the appellate court.
Corpus Juris-Cyc. References: Intoxicating Liquors, 33 C.J., Section 380, p. 681, n. 92; Section 483, p. 747, n. 59; Section 505, p. 761, n. 53; Section 527, p. 774, n. 14. Searches and Seizures, 35 Cyc., p. 1266, n. 16; p. 1269, n. 41; p. 1273, n. 69.
Appeal from St. Francois Circuit Court. — Hon. Peter H. Huck, Judge.
AFFIRMED.
Raymond S. Roberts for appellant.
(1) The application and affidavit for the search warrant and the search warrant itself based thereon failed to describe the place or premises to be searched "as nearly as may be," which is a requisite under both the State and Federal constitutions, as well as under the national and state prohibition laws enacted pursuant to the Eighteenth Amendment. U.S. Constitution, Article IV; Constitution of Missouri, Art. II, sec. 2. United States v. Berkeness, 72 L.Ed. 71; Marron v. United States, 275 U.S. 195, 72 L.Ed. 46; Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, L.R.A. 1915B 834, Ann. Cas. 1915C 1177. (2) The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. Marron v. United States, 275 U.S. 195, 72 L.Ed. 46. (3) If the Congress of the United States which enacted the National Prohibition Law could not enlarge upon it by the enactment of another and different law pertaining to the same subject applying to the Territory of Alaska, how much less can a state like Missouri enlarge upon national legislation by state legislation after the national Congress has once taken charge of legislation on the subject? This Constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. U.S. Constitution, Art. 6, Subdiv. 2. But Legislature in 1923 lost sight of the Bill of Rights contained in the Constitution of the State, the guarantees of the Fourth Amendment to the Constitution of the United States, the supreme law of the land, as provided in Article VI of the Constitution of the United States, as well as the provisions of the National Prohibition Act and repealed practically all previous state legislation on the subject and enacted in lieu thereof a sweeping statute disregarding all human safeguards and all constitutional guarantees. Laws 1923, p. 244, sec. 25. (4) Under this heading of "Supreme Law of the Land," as set forth in Article VI of the Constitution of the United States, it has been held by the Supreme Court of the United States in many cases that a strict adherence to the provisions of the constitutional limitation must be maintained in order that the Federal Government itself may continue to exist and a republican form of government be maintained in the various states composing the Union. On many subjects state laws may be valid until the power of Congress is exercised and congressional legislation enacted pertaining to a given subject, when all state laws pertaining thereto become superseded, either wholly or so far as they are found to be inconsistent. Cooley's Constitutional Limitations (2 Ed.) 19, sec. 18; Ib. p. 293.
Stratton Shartel, Attorney-General, and A.M. Meyer, Assistant Attorney-General, for respondent.
(1) The first ten amendments to the Federal Constitution are not limitations upon the power of the States or the authority of officers operating under state law. They are limitations only upon the power of the Federal Government and its officers. State v. Owens, 259 S.W. 101. The Alaska case cited by appellant is not authority for a different rule. Alaska is a territory, not a sovereign State, and of course it is governed directly by the Federal Government, through Congress, and is under Federal law. Citizens of this State are amply protected in their rights by our State Constitution, and the sovereignty of the State ought not to be bartered away for transient considerations. (2) The description of the defendant's premises contained in the application and search warrant was sufficient. State v. Stough, 2 S.W.2d 767; State v. Nordseick, 295 S.W. 808; State v. Owens, 259 S.W. 100.
Appellant was tried and convicted by a jury for the misdemeanor of possessing intoxicating liquor, in violation of Section 6588, Laws of 1921, page 414, and was fined $150 and granted an appeal. The presence in the record of a constitutional question fixes our appellate jurisdiction.
On July 23, 1927, and under the purported sanction of a search warrant, three deputy sheriffs of St. Francois County entered and searched appellant's dwelling house in Bonne Terre and found thirteen pint bottles of home brew beer in his refrigerator. They delivered to the sheriff the bottles thus secured. The sheriff had their contents analyzed by an experienced chemist in the employ of the Government at St. Louis, who testified that the bottles examined by him contained home brew of one and one-half per cent alcholic content and that said beer was potable. Appellant offered no evidence.
I. The evidence was sufficient to support the verdict. Said Section 6588, under which the information was drawn, makes it a misdemeanor "for any person . . . to . . . possess . . . intoxicating liquors within, . . . the State of Possession: Missouri, except . . .," etc. The only exception Exception. subsequently appearing in the section, which could possibly be thought to affect appellant's situation, reads as follows: "and provided further: That nothing in this act contained shall be so construed as to prevent, or prohibit, the possession of intoxicating liquor in the private residence of the owner thereof, when such intoxicating liquor has been lawfully acquired and being lawfully used," and the burden was upon appellant to show that he had lawfully acquired and was lawfully using such liquor. [State v. Naething (Mo. Sup.), 300 S.W. 829.]
From the unexplained fact that the beer was found in appellant's home, the jury had the right to find that he was in possession thereof within the meaning of Section 6588. The proof showed that the beer found in appellant's possession was intoxicating liquor within the definition of Section 6602, Revised Statutes 1919. [See also State v. Fenley, 309 Mo. 520, 275 S.W. 36.]
It is apparent that the evidence before the jury was sufficient to authorize the verdict it rendered. The assignment that the demurrer to the evidence should have been sustained must therefore be overruled unless, as appellant contends, the evidence of the discovery of the thirteen pint bottles of home brew should have been excluded, because such evidence was obtained by the use of an illegal search warrant. This contention we next consider.
II. It is contended that the search warrant was illegal because it authorized search of appellant's private residence "no part of which was being used as a store, shop or other place of business and no part of which was being used as a place of public resort where intoxicating liquors were being manufactured or Search: sold." Appellant cites and relies upon United States v. Dwelling Berkeness, 72 L.Ed. l.c. 213, 214, to support his House. contention that, under the National Prohibition Act, no search warrant may be issued to search any private dwelling unless such dwelling is being used for the unlawful sale of intoxicating liquor or unless it is in part used for some business purpose, such as a store, shop, saloon, restaurant, hotel or boarding house.
The trouble with this assignment is that this prosecution is under the Missouri prohibition law and not under the Federal prohibition act. This State has the undoubted right to pass and enforce its own prohibition laws (State v. Fenley, supra, l.c. 528.) and is not limited, save by its own Constitution, as to the character of premises upon which it may authorize a search for intoxicating liquors.
It is true that by Section 6595, Revised Statutes 1919, which was repealed and succeeded by a section of the same number, Laws of 1921, page 416, restrictions upon the search of private dwellings appear which are quite similar to those found in the National Prohibition Act; but that section as repealed and reenacted was again expressly repealed by Section 29, Laws of 1923, page 247. Section 25 of the 1923 Act, under which this search warrant was issued, contains no restriction whatever against the issuance or use of search warrants for the purpose of searching any premises whatsoever, save only that the application for such search warrant and the search warrant itself shall describe "the place to be searched and the thing or things to be seized as nearly as may be."
Section 11, Article II, of the Missouri Constitution only forbids unreasonable search of the citizen's home, and Section 25, Laws of 1923, page 244, is not in conflict therewith. It should be unnecessary at this late day to cite authority to show that the Fourth Amendment to the United States Constitution is a restriction upon the Federal Government and not upon state governments.
III. The sufficiency of the description of the property to be searched, as it appears in the search warrant and the application therefor, is challenged. Such description is as Description. follows: "A two story frame house painted white with a big circular porch in the front and on the side, together with all outbuildings and premises pertaining thereto, located in Hungarian town directly off No. 61 Highway going to St. Louis on the left-hand side about 100 yards, in Bonne Terre, Perry Township, St. Francois County and State of Missouri, being in the present possession of one John Cook."
Appellant seems to contend that, because his residence was situated within the platted portion of the city of Bonne Terre, the description did not comply with constitutional and statutory requirements that the place to be searched must be described "as nearly as may be." No doubt a description of a single dwelling by lot and block in a specified addition to a city or by a definite street number in a city would be considered a good description, but such description of a house within a city cannot be deemed the only description meeting the requirement "as nearly as may be." In State v. Lock, 302 Mo. l.c. 421, 259 S.W. 116, the court en banc said: "We think the description ought to identify the property with sufficient clearness and certainty, so that a mistake may not ensue."
The description in a search warrant is sufficient if a prudent officer charged with the duty of serving the writ and making the search will be able to locate with reasonable certainty the property described in the writ. [State v. Nordseick (Mo. App.), 295 S.W. 808.]
We think the description above set out sufficiently complied with our constitutional and statutory requirements.
IV. There is no merit in the contention that the search warrant and the application therefor did not sufficiently describe the articles or things to be searched for and seized. Description Among other things the officer was required to seize of Thing are "all intoxicating liquors" found on the premises Seized. described. This was sufficiently definite and did not deprive the appellant of his right to trial by jury on the issue of the intoxicating character of the liquor seized. Appellant has cited no authority in support of this contention and we are confident none can be found.
V. Error is assigned to the refusal of appellant's requested Instruction 2. By said instruction appellant sought to have the jury told in substance that he could not be convicted if he had possession of the liquor in his dwelling house and Possession used the same only for his own consumption and the for Own consumption of his family and bona-fide guests. Such and Family an exception is provided for in the Federal Use. Prohibition Act, but is not found in Section 6588, Laws of Missouri for 1921, page 414, under which appellant was prosecuted. The provisions of the Federal act are not controlling upon this State and constituted no defense whatever to the charge made against appellant. The instruction was, therefore, properly refused.
VI. Refused Instruction 3 proceeded upon the same erroneous theory that the Federal Prohibition Act is supreme and overrides and supersedes state statutes on the subject. The Paramount requested instruction was therefore properly refused. Statute.
VII. The foregoing covers the assignments of error urged in appellant's brief in this court. In addition thereto, error is sought to be assigned in the motion for new trial to the action of the trial court in giving instructions numbered 1 General and 3; but the assignments in relation thereto are Assignment. too general to comply with Section 4079, Laws of 1925, page 198, and cannot be considered in this court. The inadequate assignment doubtless accounts for the failure to press the assignment in this court.
The information follows the language of the statute referred to and is in every way sufficient. The verdict and judgment are unassailed and unassailable. From all of the foregoing, it follows that the judgment must be and is affirmed. All concur.