*1 570 at the time of the alleged commission of the offense. The State
proved by substantial appellant evidence that present and charged. committed the crime Under jury the instructions the could not guilty have finding present without also that he was at the place charged time and If, therefore, indictment. appellant desired an instruction on the defense of an alibi he should requested have Hubbard, it. (Mo.) 788, v. | S. W. 790. [State The'defense, therefore, being in the nature of collateral matter it duty became appellant to ask an thereon, instruction having done so-he will complain. not be heard to v. [State (Mo.), 4 (2d) Sanders S. W. l. c. 816.] Y. In' view of testimony character affirmative for the showing appellant at the time and the charged participa- where the crime was committed and his same, discussing tion in the wasted in words need the claim insufficiency of an sustain of the evidence to the verdict. prejudicial having No been committed in the trial of errors judgment All is affirmed. concur. case (2d) 61. Appellant. State v. W. Higgins, Hattie Two,
Division December
it— 1LO *2 Roy Higdon, Lyons A. W. Rucker R. & Ristine appellant. Gentry, Bloat, Attorney-General, North T. and Walter E. Special *3 respondent. Attorney-General, Assistant DAVIS, Prosecuting Attorney Lafayette C. The County filed in the circuit charging court an information defendant, August on 28, 1926, possession with the unlawful of intoxicating liquor. The jury fixing punishment returned a verdict her aat fine of one thou- sand imprisonment dollars and six months’ county jail. De- appealed. fendant One Mavel jointly Joe against informed defendant, but, with discharged court on trial as the him from custody, disposes further that of the matter. charge misdemeanor,
As the is a by cause is here virtue of a question timely duly constitutional raised. The facts adduced finding Lafayette the Sheriff County, August peace to whom a had issued a search warrant purpose, for that searched the home of defendant in Lexington, in county, containing liquid said and there bottles re- sembling holding sixty gallons beer and a container about of the same liquid. by chemist, One bottle was examined who testified per of alcohol contained two cent volume. Defendant made no regarding intoxicating statement the officer’s beer or liquor. boys The sheriff that he met two or three advancing stated objection defendant, house, and, per- toward the over the he was testify respectively of them remarked they mitted that two bought at previously obtained drinks or beer the house. The testify permitted was further that defendant said to them sheriff *4 you go occasion, s-o-b-, up to on “You better the court- do, you you if had better come back on that; and tell house any to offer The defendant refused evidence. of the river.” this side will pertinent to the issues discussed be found facts deemed Other opinion. in course of the the and searched defendant’s home it under The sheriff entered
I.' authority warrant. It is contended that the search war of a search petition application a and invalid. First: Because verified rant is jus an filed writing affidavit was not before the in or application no was peace. appears It tice of the preceding trial immeciiately the herein. The on application a search an warrant to he took testified that sheriff given by was warrant peace, and the search justice the August recites that search warrant Moreover, the that officer. 574 28, 3926, there justice was duly filed before applica- said a verified
tion petition and by in writing prosecuting attorney, stating the buildings structures, and upon premises place, and and which were therein, described intoxicating liquor being is now un- lawfully manufactured, sold, kept. stored and hesitancy We have no in reaching that, the conclusion though application even was lost, provided it was filed, secondary evidence of its ad- contents is missible. Simpson, v. 67 Mo. [State The search warrant 647.] application demonstrates that a by verified prosecuting was filed attorney, and it recites the certainty contents thereof with such as to import show facts probable sufficient to cause under our decisions. v. 300 Naething, 829; Boyer, [State W. v. State S. W. 826.] description Second: Because premises is insufficient. It Higgins reads: “The being home of Hattie a one-story frame house with brick (%) basement and located on the north one-half (%) ground the west strip lying one-half of a Street, Lexington, Missouri,
0f North and north (36) thirty-six Lexington, first to Missouri.” of block addition description, is that no one could locate the house from the and said be,” nearly may Constitution, used in the also that the words “as as description place require set forth certain the warrant to searched, is, by to lot and block. be sufficiently recognizable place If be from the to searched executing description officer the warrant to locate the to enable the certainty, is all the Constitution it premises with definiteness description necessarily require such a as is requires. does not This description, required property. The as conveyance real in the used particularity, enables the which, with by Constitution, is one place, so to all definitely ascertained exclude go to a officer to case, the home place designated of defendant In this others. description Lexington, Missouri. From such area in in a certain if places, all even such other other able to exclude were the officers defendant, designated warrant for the owned places were resided, place leave did not to place defendant where following sup- cases the officer. the discretion of searched Heimer, (Minn.) 156 N. W. v. [McSherry conclusions. port our 120; 130; Haggerty, v. 90 Atl. Olson Sheehan, 111 Me. State v. (Mo. Bauer, Sup.) No. 145; v. 48, 324 69 Wash. Pac. yet reported.] currently decided, not Township issued the Davis peace of justice of the Third: Because resulting Township, that the Lexington place search a search a a warrant legally issue issuing could not *5 3759, Re- Section under township a misdemeanor as to in another
vised Statutes pertinent Even if facts justify would tbe contention of defend- ant, it apply does not to the in facts case, for the search warrant charges the manufacture and sale, among other things, intoxicating of liquor premises, on the (Sec. which 21, are felonies 242, Laws p. 1923), empowering justice thus the of certain township a to issue a premises warrant to search in another township in county. the same Moreover, 25, we think page 244, Section 1923, that Laws authorizes justice a peace of the to issue search a warrant place to search any pursuant within county, proper the a application, for said section interpreted is to be empowering any peace of the in the county to issue such any place warrants to search in county. the Section supra, is not in conflict with Section supra, for proceedings the issuing relative the of search a is not a prosecution for within meaning misdemeanor the of the statute. incriminating If evidence is obtained as -a result of the execution prosecution warrant, follows in appropriate tribunal filing a of written information or indictment. We find no in fault the warrant for the search.
II. refusing is said the court erred in direct verdict to acquit grounds urged. defendant. Two therefor preced are In the ing paragraph disposed grounds have urged, we of one of the that search ground was void. The other involves the .warrant evjcience in the to show beverage record that the was may “Potable” be defined as potable. “beverage” drinkable and or that which is drunk. It is a knowledge as a drink common that Consequently, ais drink and drinkable. when beer the evidence beer, develops liquid containing per was that seized two cent of proof by volume, may alcohol we infer from such that it potable was being beverage. capable If and used as the State’s evidence potable, disposes question. develops it was not that If shows, an fact arises jury. evidence so issue of for defendant’s contends admitting III. Defendant that the court erred in testi- that, during they mony in charge the officers time were came to the and place, or more men while two there stated previously they drinks, and obtained had been there and that bought beer. These they been there before conversations objected sufficiently properly saved the motion to and were a new trial. argues the conversation occurred However, admissible.
defendant and therefore was time the men developed; bought beer was not previously nor were there to be continuous so as to possession of the beer shown constitute *6 possession. one Consequently, previous the sale ol beer at a did time not show tend to possessed that defendant beer on of the occasion is, the execution of search warrant. There however, stronger why reason the evidence was inadmissible. The sheriff and his deputies executing were then warrant, search which ordered person any in possession arrest found or any control of intoxicat ing liquor. liquor The found been and defendant was con actually, custody. if structively, not The officer’s relation answer, hearsay. what men purely said was The defendant’s vehement, only verity while admit failed to men what the said, categorically denied but the assertion. The State’s evidence only possessed Many tended show defendant beer. cases Dengel, 603, 605, sanction rule in State v. 248 S. W. l. c. reading: law that, “The in this well while rule is settled custody arrest, is in or under of a third the defendant statements party, presence, not denied, made are inadmissible his at -the ’’ rule, think,' applicable Error trial. is here. is deemed to The we appear non-prejudicial prejudicial it is made to unless or punishment In of the substantial as otherwise. view context shows greatly minimum, can jury, which exceeded vre sessed hearsay testimony as say to sales that the admission non-prejudicial. errors, alleged probably unnecessary discuss other is recur a retrial. questions will not
same Higbee and remanded. and the cause reversed judgment is ITenwood, GG., concur. PEE, adopted Davis, C., opinion by foregoing CUEIAM: The judges concur. All of the opinion of court. Bray H. J. G. Bray, v. W. Appellant, Ora Bank,
American (2d)W. O’Brien. 11 Two, December Division