Opinion
Nos. 43419 — 43421.
April 13, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HARRY F. RUSSELL, J.
Morris A. Shenker, St. Louis, for appellants.
J. E. Taylor, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., for respondent.
These three cases have been consolidated on appeal. The procedure followed and issues in each are the same. We shall, therefore, sometimes refer to these appeals as though there were one case. We have concluded that we have no jurisdiction and that the cases must be transferred to a court of appeals.
Upon application by a lieutenant of the Metropolitan Police Department of St. Louis, a search warrant was issued by a judge of the circuit court pursuant to the provisions of RSMo 1949, V.A.M.S., §§ 542.380 and 542.390. (These sections, in part, provide for seizure of obscene articles and pictures.) The warrant was executed and a return thereon made. Among the articles seized were decks of playing cards. On each card was a picture of a nude or partially nude woman. A notice of hearing as required by section 542.400 was given to the owner of the property seized. A hearing was had at which the owner appeared. The court determined that the property seized was the kind described in section 542.380, supra, and ordered it destroyed.
The jurisdiction of this court is invoked upon the sole ground that constitutional questions are involved on this appeal.
The hearing referred to was begun on June 27, 1951, at which the police lieutenant (who applied for and executed the warrant) testified. He related the circumstances of his application for, the issuance of, the execution of, and his return made on, the search warrant. He was cross-examined by the attorney for claimant-owner of the property. At the conclusion of the hearing on the 27th, the attorney for claimants (present appellants) introduced in evidence the application, the search warrant, "and all the proceedings that were had, that are a matter of court record". Appellants' attorney also indicated that, if the court thought it necessary, he wished to offer testimony pertaining to the nature and effect of the pictures which appeared on or in the articles seized. The court indicated that he would first determine the validity of the search warrant and if he ruled adversely to claimants, he would permit the introduction of the evidence mentioned.
The next entry in the transcript shows that on November 1, 1951, further proceedings were had pursuant to adjournment on June 27, 1951. At this later or continued hearing, it was stated by appellants' counsel that the proceeding was a "continuation of the motion to determine whether these items are obscene and lewd." The court asked, "This is not a motion to quash the search warrant?" Appellants' counsel replied, "It is the motion following issuance of the search warrant." It was then made clear by counsel that the only items which had been seized which claimants wished returned were the playing cards. Thereafter, one witness testified for claimants as to the nature and effect of the pictures appearing on the playing cards.
It further appears that on March 7, 1952, the court ordered the seized property (including the playing cards) destroyed, based upon a finding that the articles were the kind described in section 542.380, supra, and that appellants filed their respective motions for new trial. The first time any attempt was made to raise any constitutional question was in the motions for new trial.
It is established that in order to invoke the jurisdiction of this court on the ground that a constitutional question is involved, the particular constitutional question to be presented on appeal must have been raised at the earliest opportunity consonant with good pleading and orderly procedure under the circumstances of a given case. City of St. Louis v. Butler Co., 358 Mo. 1221, 1227[4], 219 S.W.2d 372, 376 [5, 6]; Robinson v. Nick, 345 Mo. 305, 309[5], 134 S.W.2d 112, 114[10-12]; State v. Williams, 337 Mo. 987, 988[1], 87 S.W.2d 423, 424[1]. Just when such earliest opportunity arises in a given case depends upon the facts and circumstances. Almost always, it is too late to raise the question in a motion for new trial; however, it has been held that where no opportunity arises until the time for a motion for new trial, the constitutional question may be raised therein. These instances are rare. See: State v. Hale, Mo.Sup., 248 S.W. 958, 959 [3-5]; Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 65[1], 70 S.W.2d 890, 892[1].
The question then is whether, as appellants contend, their first opportunity to raise the constitutional questions was in their motions for new trial. Appellants urge that, inasmuch as sections 542.380- 542.420 require no pleadings on behalf of claimants, and inasmuch as their first opportunity to examine the application and the search warrant was at the hearing, and inasmuch as the hearing presented their first opportunity to learn the facts surrounding the application for, the issuance, and execution of the search warrants, and their first opportunity to determine their validity, it follows that the first available opportunity to raise constitutional questions was in their motions for new trial.
It is apparent that appellants' conclusion does not follow from the premises asserted. On the contrary, the record demonstrates affirmatively that the earliest opportunity to raise the constitutional questions occurred long before their motions for new trial were filed.
We note, parenthetically, that it seems most unusual that the first opportunity to examine the application, warrant, and return would ordinarily occur at the hearing. And, further, it seems that these claimants must have known the exact nature of the property seized and the circumstances under which the search warrant was executed, at a time prior to the hearing. But we shall assume that, because of some unusual circumstance not appearing in the record, claimants and their counsel were unaware of the contents of the application, warrant, return, and the manner of its execution prior to the hearing. And we may further assume, without deciding, that because of the nature of the proceeding it was not essential that appellants file written motions to quash the search warrant or to suppress the articles seized, wherein constitutional questions pertaining to illegal search and seizure usually must be raised. The fact remains, however, that there was ample opportunity to have raised any constitutional questions orally either before, during, or at the conclusion of the first portion of the hearing, and certainly prior to the time of the second hearing some four months later. Certainly, orderly procedure required that appellants raise the constitutional questions in some manner just as soon as any facts appeared which may have indicated that constitutional questions were involved. All facts which could possibly give rise to constitutional questions were apparent, at the very latest, by the close of the first hearing on June 27. Appellants failed to raise any constitutional question, but, on the contrary (and presumably after the court had ruled that the warrants were valid),adduced evidence as to the nature of the pictures on the playing cards. Under the circumstances, appellants' attempt to raise constitutional questions in their motions for new trial was too late to raise these questions so as to bring these cases within the jurisdiction of this court.
Furthermore, we are convinced that the motions for new trial, considered with appellants' brief, have failed to properly raise and preserve any constitutional questions for appellate review. However, it is unnecessary, in view of our conclusion above, to demonstrate this additional reason for our lack of jurisdiction.
As stated, the sole ground urged for our jurisdiction is that constitutional questions were involved. It does not appear that the amount in dispute exceeds the sum of $7,500; nor does it appear that we have jurisdiction of this appeal on any other ground. It follows that these cases must be transferred to the St. Louis Court of Appeals.
It is so ordered.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.