Opinion
December 18, 1928.
1. INFORMATION: Intoxicating Liquor: Manufacture: Language of Statute. An information charging that defendants did "wilfully, unlawfully and feloniously use and operate a still and worm for the purpose of distilling and manufacturing for sale certain intoxicating liquor, to-wit, one hundred gallons of whiskey," is sufficient. The words "for the purpose of" mean the same thing as the statutory words "in the process of."
2. ____: Preliminary Hearing: Upon Felony Charged: Complaint: Double Charge. Although the complaint and affidavit of the sheriff charged defendants with the unlawful possession of intoxicating liquor (a misdemeanor) and with the unlawful possession of a still (another misdemeanor), if it also further charged them, in effect, with the unlawful use or operation of the still in the manufacture of intoxicating liquor (a felony), and the docket of the justice showed that they were accorded a preliminary hearing upon the affidavit of the sheriff charging them "with feloniously having in possession and feloniously manufacturing moonshine liquor, and with felonious possession of a still, sugar, etc.," they were accorded a preliminary hearing upon the particular offense charged in the information, to-wit, "the use and operation of a still and worm for the purpose of distilling and manufacturing for sale intoxicating liquors." The complaint need not state the offense with the particularity required in an indictment or information; if it states the offense in substance it is sufficient, and will not invalidate the subsequent proceedings.
3. SEARCH WARRANT: Description: Variance from Application. The search warrant need not describe a farm dwelling house or barn with the same degree of particularity as is required in the description of a dwelling house located in a city. A description in the search warrant of the place where intoxicating liquor was being manufactured as "in Big River Township, West of Jones Creek, adjoining the John Kriegbaum farm, in the farm of ____ Bauer, in a frame house or in a garage and outbuildings, connecting in use therewith, or in the curtilage of outbuildings, barns, chicken house on same," is sufficient, although the liquor was being made in the barn of William Bauer, and he had two brothers named Frank Bauer and Louis Bauer who lived near the farm; and particularly so where the oral evidence makes the place certain. And such description sufficiently conformed with the application, which differed therefrom only in the use of the words "northwest" of Jones Creek instead of the word "west."
4. INSTRUCTION: Precise Words of Statute. An instruction which does not follow the precise words of the statute is not erroneous, provided it predicates a verdict upon an affirmative finding of all the essential elements of the offense charged in a sufficient information. To tell the jury that if they find that defendants "did have in their possession and operate a certain still in the manufacture of intoxicating liquor for sale" is the same as to tell them, in the language of the statute, if they find that defendants "used a still in the process of distilling intoxicating liquor."
5. SUFFICIENT EVIDENCE: Manufacturing Liquor. The facts and circumstances developed by the State in this case were sufficient, in every particular, to support a verdict finding the defendants guilty of the charge of the unlawful use and operation of a still for the purpose of distilling and manufacturing intoxicating whiskey for sale, and assessing their punishment at imprisonment for a term of two years.
Corpus Juris-Cyc. References: Intoxicating Liquors. 33 C.J., Section 381, p. 682, n. 96; Section 382, p. 682, n. 5; Section 423, p. 711, n. 40; Section 451, p. 729, n. 42; Section 502, p. 757, n. 80; Section 547, p. 790, n. 35.
Appeal from Jefferson Circuit Court. — Hon. E.M. Dearing, Judge.
AFFIRMED.
P.S. Terry and R.E. Kleinschmidt for appellants.
(1) No prosecuting attorney or circuit attorney in this State shall file any information charging any person or persons with any felony until such person or persons shall first have been accorded the right of a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed. Sec. 3848, R.S. 1919. (a) The affidavit upon which the preliminary hearing was based utterly failed to state the substance of the offense of which defendants were convicted, that of using a still, and the subsequent proceedings and the conviction of defendants were therefore invalid. State v. Flannery, 263 Mo. 579; Secs. 3822, 3823, 3824, 3826, 3827, 3828, 3848, R.S. 1919. (b) Proof was properly introduced that a preliminary hearing was not accorded defendants as to the charge of using a still, the crime of which they were convicted. State v. McKees, 212 Mo. 138. (c) Defendants did not waive their rights to a preliminary hearing upon the purported charge contained in the amended information, the felonious use of a still, and the trial without such preliminary hearing was therefore void. Sec. 3848, R.S. 1919; State v. Flannery, 263 Mo. 579; State v. McKee, 212 Mo. 138; Ex parte Buckley v. Hall, 215 Mo. 93. (d) The purported charge under which defendants were convicted was that of using a still, a felony, as provided in the first subdivision, Sec. 2, Laws 1923, page 237; but the affidavit under which a pretended preliminary hearing was held charged them merely with the possession of a still, a misdemeanor. State v. Turner, 273 S.W. 740. (2) The application for a search warrant must name the owner or the party in possession of the premises and describe the premises to be searched with reasonable certainty. State v. Perkins, 284 S.W. 1024; State v. Richardson, 292 S.W. 61. (a) The search warrant issued in this case does not describe the place to be searched as nearly as may be, as required by the Constitution. It commands the sheriff to enter the premises "in Big River Township, west of Jones Creek, joining the John Kriegbaum Farm, in the farm of ____ Bauer, in a frame house or in the garage and outbuildings, connecting in use therewith, or in the curtilage of outbuildings, barns, chicken house on same." Such description is insufficient. State v. Lock, 259 S.W. 124; Smith v. McDuffy, 72 Or. 276; State v. Stogsgill, 297 S.W. 977. (b) The fact relied upon to constitute a probable cause for the search of the residence is that N.C. Eaves, a deputy sheriff, when he got inside of the premises, "scented the odor of the cooking of mash of some kind," but such fact is not sufficient to bring the residence or private dwelling commanded to be searched within any exception to the general rule, and consequently did not justify the search of the dwelling and curtilage. United States v. Leach, 24 F.2d 966; United States v. Palma, 295 F. 149; Staker v. United States, 5 F.2d 312; Vorhies v. United States, 299 F. 275; Gambino v. United States, 48 Sup. Ct. Rep. 137. (c) The warrant in this cause being invalid, it was improper to permit the introduction of any evidence obtained by the officers who were on defendant William Bauer's premises by virtue of a void warrant. State v. Pierce, 269 S.W. 406; State v. Owens, 259 S.W. 100; State v. McNally, 259 S.W. 1042; State v. Palma, 295 F. 149. Stratton Shartel, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.
(1) The amended information fulfills all legal requirements. Sec. 2, Laws 1923, p. 237. (2) In support of their motion to quash appellants introduce in evidence the affidavit of the Sheriff of Jefferson County made in support of his application for the search warrant. While this affidavit did not contain the word use it did state, "and such still was then and there in unlawful, felonious operation making and distilling alcoholic liquors aforesaid." This is a sufficient designation of use to comply with the requirements of the statute. Defendants also introduced the transcript of the justice of the peace as to his findings and actions in binding the defendants over to the circuit court. This was positive proof of the preliminary examination held on December 17, 1925. There was no proof of a failure to award another preliminary examination, and the proof that one was held on December 17th does not of itself prove that a second one was not given. Such proof or offer of proof must appear in the bill of exceptions in order to present this question to the court. State v. Tunnell, 296 S.W. 426; State v. McKee, 212 Mo. 148; Ex parte Buckley, 215 Mo. 93. The motion to quash was properly overruled. State v. Jeffries, 210 Mo. 302; State v. Thompson, 289 S.W. 788; State v. Langford, 240 S.W. 168; State v. Flannery, 263 Mo. 579; 16 C.J. 314, sec. 557; sec. 564, p. 316. (3) Whether the description in the warrant with defendant's Christian name omitted is of sufficient definiteness to make it valid is a question that the respondent submits to the court without comment. State v. Sillyman, 7 S.W.2d 256; State v. Nordsieck, 295 S.W. 808; State v. Stough, 2 S.W.2d 767; State v. Minor, 1 S.W.2d 108; State v. Lofton, 1 S.W.2d 830. (a) The prosecution produced evidence to establish probable cause to justify the search independent of the warrant. One of the three officers testified that he smelled an odor of liquor when he came near Bauer's barn lot, he being on Bauer's premises at the time. Neither the sheriff nor the other deputy, who made the arrest, detected these odors before searching the barn. Respondent likewise submits this question of probable cause, as based on the above related facts, to the court without argument. State v. Loftis, 292 S.W. 29; State v. Rhodes, 292 S.W. 78; State v. Hale, 279 S.W. 102. (b) It is the position of the State, however, that any deficiency of the search warrant is available to defendant Bauer alone. De Bartalo had no interest in the premises searched and had no constitutional rights involved in a search of the house, barn and other buildings belonging to Bauer. State v. Fenley, 275 S.W. 36; State v. Pinto, 312 Mo. 99; State v. Griffith, 311 Mo. 630; State v. Norris, 279 S.W. 141. (c) Respondent further desires to submit the question as to whether the defendant Bauer is entitled to attack the validity of the search. The cases indicate that a man cannot complain of an illegal search if possession of the premises is in another and not in him. If that be correct, the defendant's objection to introduction of evidence obtained by the search is inconsistent with his testimony that he had leased it to another who was in possession of it. Jones v. United States, 296 F. 632; Haywood v. United States, 268 F. 803; State v. Fenley, 275 S.W. 36. (4) To object to the use of the word operate instead of the word use is a mere play on words. They are practically synonymous and would mean identically the same thing to a jury. Any objection on this score is cured by the instruction itself when it reads, "as charged in the amended information." The amended information employs the word "use" as contained in the statute.
The appellants were jointly charged, in the Circuit Court of Jefferson County, with the unlawful use and operation of a still for the purpose of distilling and manufacturing whisky for sale. They were tried together, and the jury found them guilty and assessed their punishment at imprisonment in the penitentiary for two years. They were sentenced accordingly, but the sentence of De Bartalo was commuted to confinement in the Reform School for Boys at Boonville for two years, upon it appearing to the satisfaction of the court that he was under the age of twenty-one years. The case is here on their appeal.
The proof offered by the State shows that, on the afternoon of December 17, 1925, the sheriff and two of his deputies went to the farm of the appellant Bauer, in Jefferson County, with a search warrant. After they left the highway and entered Bauer's premises, one of the deputies "smelled the odors of whiskey down at the first gate." As they approached closer to the house and barn, Bauer and De Bartalo (appellants) came out of the barn and started to run in the opposite direction from the officers. They were halted, brought back to the barn and arrested by one of the deputies. In the barn, the officers found a "triple still" in operation, making whisky, 135 gallons of whisky, in five-gallon cans, 5000 pounds of lump sugar, in sacks, and "two big vats filled with mash." The fire under the still was removed, but it took several hours for the still to cool sufficiently to be dismantled. While waiting, the officers "watched them [appellants] cook off near a can full" of whisky. Three trucks were used in hauling the still, sugar and whisky "to town." The sheriff and one of his deputies testified that they knew the smell of whisky, and that they had smelled whisky like this whisky before. The sheriff said the boy (De Bartalo) told him "it was about one hundred eighty proof." One of the deputies said "it tested one hundred eighty."
The appellant Bauer took the stand in his own behalf, and, according to his testimony, he was fifty-two years of age, was engaged in farming, owned the premises in question, and lived there with his wife and four children. He had leased the cow barn on the west side of his barn to some stranger from St. Louis, whom he had never seen before, nor since the day the lease was given. He neither remembered the stranger's name nor knew whether or not it appeared in the lease. He identified the lease (defendant's Exhibit 3), but it was not offered in evidence. He received no rent, but "was supposed to get something." De Bartalo was sent there by the man who leased the cow barn. He saw the sugar when it was brought to the barn, and thought the other things were brought there "after dark." He knew they were making "alcohol" there, but had nothing to do with it, and did not consent to it. He thought he "couldn't make them quit, if they had a lease." He was in the barn, shucking corn, on the afternoon of the search. He "heard a car coming," and, when he saw the sheriff, "made a run to get over that mud" back of the barn, and "aimed to get out there and see what he [the sheriff] wanted."
Several witnesses testified to Bauer's good reputation for law-abiding citizenship.
I. Appellants attack the amended information upon which they were tried and convicted. Omitting formal parts, it reads as follows:
"George V. McCormack, prosecuting attorney within and for the County of Jefferson and State of Missouri, upon his official oath informs the court that at the County of Jefferson Information. and State of Missouri on or about the 17th day of December, 1925, William Bauer and Paul De Bartalo did then and there willfully, unlawfully and feloniously use and operate a still and worm for the purpose of distilling and manufacturing for sale certain intoxicating liquor, to-wit: One hundred gallons of whiskey, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State." (Our italics.)
It is first contended that the information is insufficient because it fails to follow the precise language of the statute, by charging that the still was used "in the process of distilling" intoxicating liquor. As above shown, it is Statutory charged in the information that the still was used and Language. operated "for the purpose of distilling and manufacturing" intoxicating liquor. This is a hypercriticism. It points out a distinction without a difference. To say that a certain device was used for the purpose of doing a specific thing is manifestly the same as saying that a certain device was used in the process of doing a specific thing. At least, they have one and the same meaning in charging an offense under the statute in question. [Sec. 2, Laws 1923, p. 237.] We hold, therefore, that the information sufficiently pleads an offense under that statute.
It is seriously urged that the trial court erred in overruling the motion to quash the information, which asserted that appellants had not been accorded a preliminary hearing upon the offense sought to be charged, as provided in Section 3848, Revised Statutes 1919. In support of this motion, Complaint: appellants offered in evidence the affidavit or Different complaint of the sheriff upon which they were Offense: accorded a preliminary hearing. This affidavit or Preliminary complaint states that appellants had "in their Hearing. possession a large quantity of alcoholic liquors, containing more than one-half of one per cent volume, alcoholic content, to-wit: about 140 gallons of alcoholic liquor, by them made, distilled and manufactured, unlawfully and feloniously, and did then and there have in their possession under their control a large whiskey still, worms and doubler and such other equipment for the manufacture of alcoholic liquors, unlawfully to be distilled and manufactured, and that such still was then and there in unlawful, felonious operation, making and distilling alcoholic liquors aforesaid, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State." (Our italics.) They also offered in evidence the transcript of the justice before whom the affidavit or complaint was filed and by whom the preliminary hearing was given. The transcript quotes the sheriff's return on the search warrant, which among other things, contains the following: "The two men were arrested found operating still." The transcript further says that William Bauer and Paul De Bartalo were given a preliminary hearing on the affidavit of the sheriff, charging them "with feloniously having in possession and feloniously manufacturing moonshine liquor, and with feloniously possession of still, sugar, etc."
It may be conceded that neither the affidavit of the sheriff nor the docket entries of the justice are written with care and precision, and it may be conceded also that the affidavit charged appellants with the unlawful possession of intoxicating liquor, a misdemeanor. But, it will be noted that the affidavit does not, as appellants contend, merely charge them with the unlawful possession of a still, another misdemeanor, because it charges them, in effect, with the operation or use of the still in the manufacture of intoxicating liquor, and the 2nd Subdivision of Section 2, Laws 1923, page 237, provides that the possession of a still is a misdemeanor, only when it is not charged that such still has been used in the manufacture of intoxicating liquor. So, while it may be said that the affidavit charges appellants with the unlawful possession of intoxicating liquor, a misdemeanor, it also charges them, in substance and in effect, with the use of a still "in making and distilling intoxicating liquors." Thus, it plainly appears, from the affidavit and the docket entries, that appellants were not only charged, in the affidavit, with the felony alleged in the information, but, also, that they were accorded a preliminary hearing upon that particular felony, and that felony only.
In an able discussion of this subject, in the case of State v. Flannery, 263 Mo. 579, 586, 173 S.W. 1053, WALKER, J., says: "This being the purpose, it follows that the complaint upon which the examination is based need not be framed with the same particularity as an indictment or information, but will be sufficient if it states the offense in substance so that the accused may know the nature of the charge preferred against him. . . . Oftentimes it is of necessity made by laymen, who are not only unfamiliar with the terminology of the law, but wholly ignorant of criminal pleading. To hold that a complaint authorized to be filed under such conditions should conform to the rigid rules of criminal procedure would be to destroy the purpose of the statute, which, in addition to the objects stated, provides a way by which the defendant may be legally arrested and, if probable cause is found to exist, detained until an indictment or information may be preferred against him. His legal arrest is, therefore, of equal importance and of more effective force in the administration of the criminal law than the filing of the complaint upon which the warrant of arrest is based. Having accomplished this purpose, the defects and informalities of the complaint, unless it fails utterly to state the substance of the offense with which the accused is charged, should not be held sufficient to invalidate the subsequent proceedings." (Our italics.)
From the proof furnished by appellants themselves, it is apparent that they were accorded a preliminary hearing upon the offense charged in the information, and that the trial court properly overruled the motion to quash the information, in which they asserted to the contrary.
II. Appellants further contend that their motion to quash the search warrant and to suppress the evidence obtained thereunder should have been sustained on both of the grounds Search specified therein; first, because the place to be Warrant searched was not described "as nearly as may be," Description: as provided in Section 11, Article II, of the Variance. Constitution of Missouri; and second, because the description in the search warrant does not correspond with the description in the application therefor.
The place to be searched is described in the search warrant as follows:
"In Big River Township, West of Jones Creek, adjoining the John Kriegbaum Farm, in the farm of ____ Bauer, in a frame house or in a garage and outbuildings, connecting in use therewith, or in the curtilage of outbuildings, barns, chicken house on same."
In support of the motion, the appellant Bauer testified that the place searched was his home and residence, and was occupied by him and his family as their home; that his two brothers, Louis and Frank Bauer, lived "near there, west, kinda northwest" of the Kriegbaum farm, and, "if they didn't join, they are very close" to the Kriegbaum farm; that their farm is "west of Gravois Road and north from Jones Creek;" that his farm is "north and south, on both sides of the creek," and his house and barn are on the "north" side of Jones Creek; and his brothers' barn was "on the other side." Henry Ficken testified that Louis and Frank Bauer's farm "is right close" to the Kriegbaum farm, "if it don't join," but was "not certain" whether it "joins" or not; that William Bauer's farm was "northwest" from Jones Creek, the same direction as his brothers' farm, but he also said that William Bauer's farm was "kinda north and south" of Jones Creek, that is, "he has land on both side of the creek." Jesse Buxton testified that he was unable to say whether or not Louis and Frank Bauer's farm joins the Kriegbaum farm, but "always thought they cornered;" and that William Bauer's farm and his brothers' farm were both "north from Jones Creek."
It is true that neither the search warrant nor the application therefor gave appellant William Bauer's first name, and it appears, from the evidence offered, that his two brothers, Louis and Frank, lived on a farm in the same general locality, that is, in the neighborhood of Jones Creek. What the distance was between their farms, or whether the one was close to the other does not appear; nor was the appellant William Bauer, or either of his witnesses, able to say positively that his brothers' farm adjoined the Kriegbaum farm. But, it was not denied, and it may be inferred from the inquiries made of the witnesses, that the farm of the appellant William Bauer did adjoin the Kriegbaum farm, and the search warrant described the place to be searched as "in a frame house or in a garage and outbuildings, connecting in use therewith, or in the curtilage of out buildings, barns, chicken house, in the farm of ____ Bauer, adjoining the John Kriegbaum Farm." (Italics ours.) Moreover, the proof fails to show that the farm of Louis and Frank Bauer had on it a frame house, garage, chicken house, outbuilding, or any house or buildings whatsoever, except a barn; whereas, it was not denied, and may be inferred from the evidence offered, that such a house and such buildings were located on the farm of the appellant William Bauer. So, it is not true, as appellants contend, that the description in the search warrant and the application therefor could be as well applied to the farm of Louis and Frank Bauer as to the farm of the appellant William Bauer. And, while the "farm of ____ Bauer" is described in the search warrant as "west" of Jones Creek, and in the application as "northwest" of Jones Creek, and the evidence shows that the farm of appellant William Bauer was "north and south on both sides of the Creek," there was no showing as to whether or not Jones Creek follows a winding course, nor as to whether or not some of his farm was located west or northwest of the creek. In view of the undisputed marks of identification contained in the search warrant and the application therefor, and the other facts and circumstances developed in connection therewith, we must conclude that the requirements of the Constitution and the statute (Sec. 25, Laws 1923, p. 244) were substantially complied with, in describing the place to be searched "as nearly as may be." When confronted with a similar situation, in the recent case of State v. Stough, 2 S.W.2d 767, 770, we said: "It seems neither necessary nor practical to describe a farm dwelling house in a search warrant with the same degree of particularity as a dwelling house located in a city, town, or village, where different families live in the same house and in adjoining houses, and where houses may be definitely described by street numbers or by other marks of identification." In the case of State v. Lock, 302 Mo. 400, 421, 259 S.W. l.c. 124, the opinion of this court, en banc, is thus expressed: "We think the description ought to identify the property with sufficient clearness and certainty, so that a mistake may not ensue." The Kentucky Court of Appeals says: "Certainty to a common intent is all that is necessary in the descriptive part of a search warrant." [ 205 Ky. 55, 265 S.W. 433.]
The description in the search warrant is substantially the same as the description in the application, as to the location of the premises to be searched, the kind and character of the buildings located thereon, and other definite marks of identification. The only material difference in the language of the two descriptions is, as already indicated, that "the farm of ____ Bauer" is referred to as "west" of Jones Creek, in the search warrant, and as "northwest" of Jones Creek, in the application. Hence, it is hardly tenable to say that the description in the search warrant does not "correspond" with the description in the application.
It follows that the trial court properly upheld the validity of the search warrant and the legality of the evidence obtained thereunder.
III. Complaint is made of Instruction 1 because it authorized a conviction upon a finding by the jury that appellants "did have in their possession and operate a certain still . . . in the manufacture of intoxicating liquor for sale," instead of requiring the jury to find that appellants "used a Instruction: still in the process of distilling intoxicating In Words liquor for sale." In other words, this instruction of Statute. is criticized because it did not follow the precise language of the statute which defines the offense charged. This complaint is fully answered in the discussion of the same criticism with reference to the information. It will suffice to say that this instruction, in effect, predicated a verdict of guilty upon an affirmative finding as to all of the essential elements of the offense charged, as defined by the statute, and was, therefore, a correct declaration of the law.
IV. While the sufficiency of the evidence is challenged in the motion for a new trial, that question is not considered in appellants' brief, nor was it urged in the oral Sufficient argument of their learned counsel before this court. Evidence. Let it be said, however, that the facts and circumstances developed by the State at the trial are abundantly sufficient, in every particular, to support the verdict in this case. For rulings to the same effect, based on similar proof, see State v. Nerini, 6 S.W.2d 853; State v. Stough, 2 S.W.2d, supra; State v. Widick, 292 S.W. 52; State v. Dailey, 280 S.W. 1044; State v. Cockrum, 278 S.W. 700; State v. Thogmartin, 270 S.W. 313.
We find no prejudicial error in the record. The judgment is accordingly affirmed. Higbee and Davis, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.