Thе appellants were convicted of violation of the liquor law, Section 6588, Revised Statutes 1919, as amended by the Act of 1921, Laws 1921, p. 414, et seq. The informatiоn is in three counts.
' The first count charged the defendants with having in their possession “one still, doubler, worm, worm tub, mash tub, fermenting used and for use in the manufacture of intoxicating liquor. ’ ’
The second count charged the defendants with the manufacture of intoxicating liquor.
The third count charged the defendants with having in their possessiоn intoxicating liquor.
The Sheriff of Webster County, with a search warrant issued by the Clerk of the Circuit Court of that county (not a justice of the peace, as resрondent states), searched the premises of defendants and found the articles mentioned in the information. On a trial the jury found the defendants guilty as chargеd in the first count, and assessed their punishment at a fine of two hundred dollars each; found the defendants guilty as charged in the third count and assessed their punishment аt a fine of two hundred dollars each; and found them not guilty on the second count of the information. The effect of the verdict was that the defendants рossessed apparatus for manufacturing intoxicating liquor and had such liquor in their possession, but did not manufacture it. They appealed from the judgment.
*437 I. Thе State filed a motion in this court asking an order transferring the case to the Springfield Court of Appeals on the ground that this court had no ....... .. . . . -, jurisdiction, it being a misdеmeanor case and no constitutional question having been properly raised.
At the January term, 1922, before the trial, the appellants filed in the Cirсuit Court of Webster County a motion to quash the search warrant mentioned above and suppress the evidence obtained by the sheriff in the executiоn of it, on the ground that the search warrant was illegal and. void and contrary to the Fourth and Fifth Amendments of the Federal Constitution, and Sections 11 and 23 of Article II of the Constitution of Missouri.
The constitutional question was thus properly raised by the defendant at the first opportunity. The information on its face does not suggest that the constitutional question could be raised by a demurrer or other motion more appropriate than the one filed by the defendant. This court therefore has jurisdiction and the motion is overruled. [Lohmeyer v. Cordage Co.,
II. The error presented by the appellants upon which they rely fоr reversal is this:
It is claimed that the search warrant issued by the circuit clerk was illegal and void and did not authorize a search and, in consequence оf that, the evidence discovered by the sheriff in executing the search warrant was inadmissible against the defendants.
The search warrant was unauthorized fоr several reasons. It could not issue except upon probable cause as provided in Section 11, Article II, of the Constitution of Missouri. No faсts were stated in the affidavit filed by the prosecuting attorney which would justify the issuance of the warrant. This matter was exhaustively and ably elaborated by Davis, C., in сase of State v. Lock, ante page 400, decided at the present term of this court. Another reason why the search warrant was void was *438 that Section 6595, under which it was issued, does not authorize a search warrant. Besides, the circuit clerk being a mere ministerial officer could not issue it in any event, bеcause such warrant can be issued only by a court upon a judicial investigation. [24 R. C. L. p. 706.]
The appellants do not question the constitutionality of that statute. They only claim that the search warrant was issued in violation of Section 11, Article II, of the State Constitution. It has been held by this court in the case of Lоwry v. Rainwater,
III. The question then is presеnted whether the ev^eilce discovered by the sheriff in the illegal search was properly admitted in evidence.
The evidence showed that both the liquor and the apparatus were found in the dwelling house occupied by the defendants, and also in an. abandoned dwelling house on the premises 'of the defendants. Defendants Gus Tunnell and Dorotha Tunnell were the father and mother of the defendant Sammie Tunnell. The evidence also indicates that others besides the defendants were concerned in the operation' — if there was such — of the apparatus. The State makes no distinction betwеen the search of the vacant dwelling-house and the one actually occupied by the defendants. We are not apprised that there is any difference, since the unoccupied dwelling was on the premises of the defendants. The appellants before the trial presented their mоtion to the court praying the court to suppress the evidence discovered by the sheriff and for a return of the property seized. The court оverruled their motion and on a trial the defendants objected to the testimony of the sheriff because discovered by this illegal search warrant. It was error to admit the evidence.
*439 We have fully discussed the admissibility of such evidence in the case of State v. Owens, ante page 348, determined at this term of court, аnd an examination of the opinion in that case, where the authorities are reviewed at some length, will show the reasons for our ruling.
Y. The State cites in support of its position some eases from the Federal court fully considered and analyzed in the Owens Case. It also cites the case of State v. Pope,
The judgment is reversed.
*440 Some evidence besides that discоvered by the illegal search of the sheriff appears in the record pointing to the possession by the defendants of the articles forbidden .by the statute. We are not certain that evidence of that kind can be produced sufficient to procure a conviction, but for the reason that there appears to be such evidence we remand the case.