State v. Horton , 312 Mo. 202 ( 1925 )

The defendant was indicted by a grand jury in the Circuit Court of Chariton County, in two counts. The first count charged him with having unlawfully in his possession on the — day of ____, 1923, seven gallons of intoxicating liquor. The second count charged him with possession of a still for the use of manufacturing intoxicating liquor.

On a trial the jury found him guilty on both counts and assessed his punishment at $300, and imprisonment in the county jail 180 days, on each count.

Before the trial the defendant filed a motion to suppress the evidence of the sheriff and a Federal prohibition officer, on the ground that the evidence of such witnesses was obtained in a search of his premises in violation of the Fourth and Fifth Amendments to the Federal Constitution, and in violation of Section 11, Article 2, of the Constitution of Missouri, and in violation of Section 23, Article 2, of the Constitution of Missouri. This motion was overruled.

The sheriff, over the objection of the defendant, was permitted to testify that he, with the Federal officer went to the home of the defendant with a search warrant and there discovered whiskey which caused the conviction of the defendant on the first count, and a still which caused his conviction on the second count.

A stipulation filed, signed by attorneys for the plaintiff and the defendant, was to the effect that A.S. Wilks, Sheriff of Chariton County, accompanied by Federal prohibition agents, went to the premises of the defendant on a certain day, and that neither the prohibition agents nor the defendant had a valid search warrant authorizing them to search said premises for intoxicating liquor or a still. An invalid search warrant, however, was in the possession of the prohibition officer and was read or partly read to the defendant. The only witness for the State was the sheriff who testified to the discovery of the whiskey and still on the defendant's premises. The principal question in the case is whether the evidence of the sheriff was admissible in view of the timely motion to suppress. The sheriff testified that he and a Federal agent went to the home of the defendant, and then his testimony proceeds as follows:

"Q. Well, now, right there let me ask you, did Mr. Wilcox purport to read to Mr. Horton what purported to be a search warrant? A. He started in to read it, and just the moment he commenced reading this the lady ran back through the house to what is called the smokehouse, or outhouse, out about fifteen or twenty feet from the back kitchen door, and while he was reading we heard this racket, the lady breaking the jugs, and that attracted the attention of everybody, and that stopped the reading and all rushed to this place. . . .

"Q. I say was the dwelling house between you and the smokehouse? A. Partly; we only had to step out just a few feet until we would be in the direction of the smokehouse where we could see.

"Q. Where did you first see Mrs. Horton? A. In the outbuilding, smokehouse.

"Q. Did you see her at the front door? A. Yes sir, at the first.

"Q. And she left the front door? A. Yes, sir.

"Q. And the next place you saw her was in the smokehouse? A. Yes, sir.

"Q. Now why did you say you happened to go 'round to the smokehouse? A. We heard the crash of the breaking those jugs.

"Q. And you went 'round to the smokehouse? A. Yes, sir.

"Q. And what did you find? A. Well, we found Mrs. Horton breaking up the jugs, destroying the evidence.

"Q. What did you get back there, anything? A. Well, Mr. Wilcox got — yes, we got, I think, three jugs that she didn't break, the others were broken and he got a soda bottle, as well as I remember, of evidence, said that would be sufficient, and destroyed the other in their presence.

"2. What was it? A. It was whiskey."

The sheriff then testified that after the discovery of the whiskey in the smokehouse the Federal officer proceeded into the cellar under the house and discovered the still. The still was not observable from the outside and was only discovered by a search. This evidence of the sheriff indicates that the action of Mrs. Horton in breaking the jugs in the smokehouse was seen from the outside; that is, the sheriff did not have to go into the smokehouse, but saw through the open door.

In his testimony on the motion to suppress, the sheriff said:

"Q. I say, was the dwelling house between you and the smokehouse? A. Partly, we only had to step out just a few feet until we could be in the direction of the smokehouse where we could see."

A deposition of the sheriff also was introduced, in which he testified in this way:

"A. The back door of the house was here (indicating) and right about here (indicating) was the smokehouse. We could see in the smokehouse before we could see the back of the main house.

"Q. The smokehouse was west of the residence? A. Yes, sir; and the door was in the east of the smokehouse. We ran right up to the door — right on her as she was pounding the jugs.

"Q. In the smokehouse? A. Yes, sir, in the smokehouse; they were in sacks."

I. The sheriff was lawfully on the premises; it was not intimated that he had no right there. He didn't have to go into the smokehouse, but to step a little to one side so that he could see back of the house and into the smokehouse. "All rushed" around there to see what was happening. ThereCrime Committed is nothing in the evidence to indicate thatin Officer's the sheriff entered the smokehouse, or madePresence and View. any search in order to find the whiskey, but through the door he saw Mrs. Horton spilling the whiskey, and he knew what she was doing. The offense, therefore, of possessing whiskey was committed in the presence and view of the officer, and he had a right to arrest her husband. [See State v. Turner, 259 S.W. 427, l.c. 428, and Federal cases there cited.] He had a right to testify to the discovery of the whiskey, and the motion to suppress was properly overruled so far as it relates to the first count of the indictment — the possession of intoxicating liquor.

II. After the discovery of the whiskey by the sheriff in the smokehouse, the Federal agent then made a search in the cellar under the house and discovered the still. It appears this was not open to view. It was discovered only by entering theIllegal premises where the officer had no right to go and had noSearch. right to make a search, so that the evidence in respect to the second count was incompetent, and the motion to suppress that evidence should have been sustained.

III. It is claimed by appellant that the court erred in refusing certain instructions asked by him. Two of these instructions are predicated upon the assumption that the evidence of the violation of law was obtained by an unlawfulInstruction. search, and for that reason the jury should find the defendant not guilty. These were properly refused so far as the first count was concerned.

IV. Another refused instruction, numbered 2, is to the effect that if the jury did not find that the defendant on the — day of October, 1923, within one year prior to the 23rd day of November, 1923, possessed seven gallons of intoxicating liquor, to-wit, whiskey, then they should find the defendant not guilty. It does not indicate to which count it applied. The jury were directed to find the defendant not guilty if he didn't possess seven gallons of whiskey; if he possessed six and one-half gallons, or any number less than seven gallons, he would not be guilty of violation of the law. The instruction, therefore, was properly refused.

It appears there was no evidence of the defendant's guilt under the second count, except that unlawfully discovered by the prohibition officer. There is nothing in the record to indicate that other evidence can be produced in support of the second count. Therefore the judgment is affirmed as to the first count, and reversed as to the second count.