State v. LoftisState v. Loftis
- Reporters:
- , ,
- Before:
- Walker
Thе appellant was charged by information in the Circuit Court of Douglas County with the transрortation of intoxicating liquor, to-wit, moonshine. Upon a trial to a jury he was convicted and sentenced to five years’ imprisonment in the penitentiary. From this judgment he aрpeals to this court.
The Sheriff of Douglas County, accompanied by a deputy, on the night of November 30, 1925, arrested four men in an automobile on a highway two or three miles north of Ava, and found in the car a carton containing a dozen half-gallon fruit jars containing moonshine liquor. The appellant testified that he was simply а passenger in the car en route to Mansfield, and that he did not know that the car contained the carton of liquor. It was in evidence that an hour or more before thе arrest of the occupants of the ear, two men drove up to a store in Brixey in a car similar to the one subsequently captured, and delivered a package which the witness thought was five gallons of whiskey. The general description оf one of these men was the samé as that of the appellant.
Before thе trial began appellant’s counsel filed a motion to suppress the testimоny on the ground that the car was examined and the whiskey found by the sheriff without a searсh warrant. This motion was overruled. At the close of all of the testimony a perеmptory instruction was asked in the nature of a demurrer to the evidence which wаs overruled.
The only question preserved in the motion for a new trial, under Sectiоn 4079, as amended, Laws 1925, p. 198, is as to the authority of the sheriff to search the automobile. To this we will give attention.
I. The offense with which the appellant is charged mаy be said to have been committed in the presence of the officer in thаt when apprehended the appellant was in the act of transporting the liquor. This being true, and the smell of liquor permeating the’ nostrils of the officer when he аpproached the ear, he was not precluded from searching the same without a warrant. Where an officer has reason to believe from the use of his senses that an automobile is being used to transport intoxicating liquors, his seizure аnd search of same will not be in violation of either the Federal or State Cоnstitution. [State v. Hall, 278 S. W. 1028; State v. Pigg, 278 S. W. 1030; In re Mobile, 278 Fed. 949; Elrod v. Moss, 278 Fed. 123; Lambert v. United States, 282 Fed. 413.]
In United States v. Snyder, 278 Fed. 650, in discussing the Fourth Amendment to the Federal Constitution, identical in subject-matter *881 with Section 11, Article 2, of tbe Constitution of Missouri, relative to tbe right of an officеr to make an arrest and search without’ a warrant, it is said (p. 652) that “the provision of the Constitution should be construed in the light of and in conformity with the common law, with which the framers of the Constitution were familiar;” and in this opinion (p. 653) it was further said that “it was the rule of the common law at the time of the adoption of the Constitution, . . . that a pеace officer — an officer charged with the enforcement of the lаw— may arrest a criminal when caught in the act of committing a crime and when thus arrеsted he may search him for evidence pertaining to the crime.” The essence of this doctrine is that a search without a warrant must be based upon probable cause as well as one made with a warrant and that probable cаuse consists in a reasonable ground of suspicion, supported by circumstances sufficiently-strong in themselves to warrant a cautious man in the belief that the accused is guilty. [Boeger v. Langenberg, 97 Mo. 396; Ex parte Morrill, 35 Fed. 261.] Viewing the question, therefore, from any vantage аuthorized by the facts, we hold that the action of the sheriff in searching the automоbile was not violative of any constitutional provision and the appellant’s contention is overruled.
We have adverted to the fact that the motion for a new trial is couched in the most general terms. Thus phrased, with the exception we have noted, there is nothing, under the unmistakable provisions of the Act of 1925, Laws 1925, рage 198, for us to review except the record proper. This discloses nо error prejudicial to the substantial rights of the appellant and the judgment of the trial court is affirmed.
All concur.