State v. Berry, 24233 (mo.banc 1923)State v. Berry, 24233 (mo.banc 1923)
Lead Opinion
Thе information is in three counts: The first charges that the defendant, on September 22, 1922, unlawfully had in his possession a still and worm used and fit for use in the рroduction of intoxicating liquors; the second, that on the same day be unlawfully had in his possession certain intoxicating liquors potablе and fit to be used as a beverage, which contained more than one-half of one per cent. of alcohol per vоlume; the third count, charging that defendant manufactured intoxicating liquors, was dismissed before the trial. The jury found the
Under a warrant issued by the clerk of the circuit court on September 15, 1922, on the order of the circuit judge, the sheriff searched the defendant‘s dwelling house and seized a coppеr still, coil, some whisky, and destroyed several barrels of mash. Before the trial the defendant filed a petition praying for the restoration of the property seized, alleging that the warrant was unlawfully issued, and the search and seizure thereof in his private dwelling were in viоlation of certain sections of our Constitution. This petition was beard and overruled on October 20, 1922. No exception was saved to this ruling of the court. A motion to quash the information was overruled on the same day, and no exception was saved thereto. The petition and motion each severally alleged substantially the same grounds as set forth in the petition and motion in the companion case. State v. William Goetz, 253 S.W. 710.
1. An exception to a ruling of the court must be taken at the time it is made, otherwise it cannot be reviewed on aрpeal. Exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as the сourt may, by an order entered of record, allow.
2. In the bill of exceptions there is this recitation:
“After the swearing of the jury comes now the defendant and renews his petition for rеstoration of property heretofore filed and submitted to the court.”
This was overruled, and the defendant excepted.
The question upon the petition had been ruled adversely to the defendant when the evidence was heard. No exception was taken to this ruling. It was a closed incident. When the causе came on for trial it was too late for the defendant to reopen the issues upon the petition, and the court very properly refused to do so. It was then too late to inquire into the propriety of the seizure of the still and whisky or of their admissibility in evidence at the trial already entered upon. State v. Sharpless, 212 Mo. 176, 193, 111 S.W. 69. The constitutional questions presented by the petition for the restoration of the property seized by the sheriff therefore cannot be considered on this appeal.
3. The motion to quash the information chargеd generally, inter alia, that
It is apparent that these allegations are mere conclusions and are insufficient to raise any constitutional questions for our consideration. See State v. William Goetz, supra. However, since the bill of exceptions fails to show that the defendant excepted tо the overruling of the motion, it must therefore be treated as having been abandoned and cannot be made the ground of a motiоn for new trial.
4. In the motion for new trial it is alleged that the court erred in admitting in evidence a bottle and its contents, which was in violation of defendant‘s constitutional rights. In paragraph 7 it is said that
The eighth ground in the motion for new trial is:
“Because the court erred in giving instructions Nos. 4, 5 for the state, for the reason that
A general objection was made to the giving of these instructiоns; no objection was made on the ground here first assigned. The objection not having been made at the trial, it cannot be made by injecting it into the motion for new trial. Hartzler v. Met. St. Ry. Co., 218 Mo. 562, 117 S.W. 1124, and Miller v. Connor, 250 Mo. 677, 684, 157 S.W. 81, where the cases are reviewed. In the latter case, Judge Lamm, at page 683, of 250 Mo. at page 83 of 157 S.W. said:
“In order to bring an appeal within our jurisdiction on a constitutional ground, it must appear that a constitutional construction was essential to the determination of the case.”
It is apparent that a construction of
“Provided, however, that when the above mentioned phrases, `intoxicating liquor,\’ or `intoxicating liquоrs,\’ are hereafter defined in the laws of the United States, then such definition by Congress shall supersede and take the place of thе definition of said phrases in this section
This proviso anticipates that Congress may in the future modify the provisions of the Volstead Act (41 Stat. 305), defining the tеrm “intoxicating liquor.” The objection is purely speculative and need not be considered. But it is too plain for argument that
Other assignments in the motion for new trial are mere repetitions аnd have already been considered. The cause is remanded to the Kansas City Court of Appeals.
RAILEY, C., not sitting.
Addendum
The foregoing opinion of HIGBEE, C., is hereby adopted as the opinion of the court.
All concur.