State v. Howard

• Decision Date: 11 December 1929
• Docket Number: 29053
• Citation: 23 S.W.2d 11,324 Mo. 145
• Parties: The State v. Gus Howard, Appellant
• Court: Missouri Supreme Court

23 S.W.2d 11

324 Mo. 145

The State v. Gus Howard, Appellant

No. 29053

Supreme Court of Missouri

December 11, 1929

Appeal from Boone Circuit Court; Hon. David H. Harris Judge.

Affirmed.

J H. Whitecotton, Jas. E. Boggs, and J. W. Wright Jr., for appellant.

(1) The court erred in overruling defendant's motion to suppress certain evidence, to-wit, two certain jugs claimed to have contained intoxicating liquors, because of the fact that said evidence was had with force and against the will of the defendant by taking from defendant his keys and unlocking the car without any warrant either for arrest or otherwise, and without, according to his own testimony, any probable cause for seizing and taking said jugs, the same being taken in violation of defendant's constitutional and legal rights, and in violation of Sec. 11, Art. II, Constitution of Missouri, and also in violation of Amendment No. 4 to the Constitution of the United States, and in violation of the laws contained in the Act of 1923, Laws 1923, p. 244, and especially in violation of Section 25 to said acts. (2) The information failed to state facts sufficient to constitute any offense against the defendant under the laws of Missouri. The act and section of the act under which said information is filed is unconstitutional and in violation of Sec. 28, Art. IV, Constitution of Missouri, and said section is so indefinite and uncertain as to the language used as to constitute no offense, or to inform the defendant, what offense, if any, is prohibited by said section. (3) It was wholly incompetent for the witness McCanne to testify as to the condition of Howard at the time of his arrest. This only tended to inflame the jury against the defendant and was not material to any issue in the case, and in no way tended to prove the defendant guilty or not guilty of the transportation of intoxicating liquors as charged in the information. The same is true as to the court permitting the witness McCanne to testify to finding upon the person of the defendant a half pint bottle of liquor, which he stated was hootch, moonshine, corn whiskey, and the same is true as to the witness Hughes in testifying, over the objections of defendant. (4) The court erred in permitting the witness Ahmann, to testify that he analyzed the liquor and whether or not it is ordinarily called or termed "hootch, moonshine, corn whiskey." (5) The court erred in refusing to give defendant's instruction in the nature of a demurrer, for the reason there was no substantial testimony tending to prove the allegations of the information and for the further reason that there was no venue proven. (6) The court should not have given instructions 1, 2 and 6 as prayed for by the plaintiff and given. (a) Instruction 1 was broader than the information in this, that it used the words "transport any hootch, moonshine or corn whiskey," when the information charges the defendant on said date with "transporting hootch, moonshine, corn whiskey," and there being no substantial proof of the transportation of hootch, moonshine, corn whiskey it was error to give the instruction as worded. The words used in the information are supposed to be synonymous and the charge did not warrant the disjunctive submission by the instruction that the defendant could be found guilty if he had transported "hootch, moonshine or corn whiskey." (b) Instruction 2 was erroneous for the reason that in its definition and in its application to this case said instruction should have limited the materials from which whiskey is manufactured. Whiskey cannot be manufactured from anything except grain. (c) Instruction 6 fails to properly and sufficiently define "reasonable doubt," as required by law. The defendant was entitled to have in this case an instruction fully defining "reasonable doubt." R. S. 1919, sec. 4025; State v. Owens, 79 Mo. 631; State v. Clark, 147 Mo. 20; State v. Nerzinger, 220 Mo. 49; State v. Douglas, 167 S.W. 552. (7) It was clearly and manifestly error on the part of the court in directing the sheriff to inquire of the jury after a consideration of the case from 2:15 P. M. to 5:40 P. M. as to whether or not they had agreed upon a verdict, and in said sheriff further questioning the jury as to their difficulties and trouble in agreeing upon a verdict and reporting the same to the court, and in the action of the court, on the report of the sheriff, and in giving the instruction that was given following the interrogation had with the foreman of the jury as to their attitude toward a conviction, and also in the action of the court in assessing the punishment that was assessed upon the verdict returned after the giving of said instruction. This is a direct violation of the law that there shall only be twelve persons acting on the jury at a time, there being no provision for the thirteenth juryman which acted in this case and was the cause, we believe, of the verdict, and we know of the sentence imposed. (8) The court committed error in permitting witnesses McCanne, Fleming, Fenton, Ballew, Whitesides and others, to testify as experts in this case. The facts sought to be elicited from the witnesses could have and should have been ascertained and made intelligible to the jury by an analysis of the contents of the bottle by a competent chemist. Where testimony can be had which is intelligible and competent by competent experts it is improper on the part of the court to admit the opinion of lay witnesses without any showing as to qualification to answer, the same being an invasion of the duty and right of the jury. Exhibits A and B contained liquid contents subject to analysis and the opinions given by the witnesses offered was not competent under the facts in this case. State v. Farley, 144 Mo. 600; 7 Am. & Eng. Ency. Law 493.

Stratton Shartel, Attorney-General, and Hibbard C. Whitehill, Special Assistant Attorney-General, for respondent; J. A. Walden of counsel.

(1) A search warrant is not necessary when an officer has probable cause to believe, from all the facts and circumstances, that a felony is being committed. State v. Pigg, 278 S.W. 1030; State v. Hall, 278 S.W. 1028; State v. Connor, 300 S.W. 685; State v. Thurston, 300 S.W. 486; State v. Padgett, 289 S.W. 954; State v. Loftis, 292 S.W. 29; State v. Owens, 302 Mo. 348; State v. Bailey, 8 S.W.2d 57. (2) The court did not err in overruling the motion to quash the information. The information was valid. The Liquor Act, including its transportation feature, is constitutional. State v. Knight, 300 S.W. 719; State v. Brown, 304 Mo. 78; State v. Cook, 3 S.W.2d 365; State v. Smith, 300 S.W. 1081; State v. Wheeler, 2 S.W.2d 779; State v. Brown, 317 Mo. 361; State v. Boyer, 300 S.W. 826; Coca-Cola Bottling Co. v. Mosby, 289 Mo. 472; State v. Hanson, 234 Mo. 583; Hicks v. Simonsen, 307 Mo. 307; State v. Griffith, 311 Mo. 630; State v. Cardwell, 312 Mo. 140; State v. Tallo, 308 Mo. 584. (3) Evidence of the intoxication of the defendant, and as to statements made by defendant at the time the sheriff came upon the scene, are all parts of the res gestae and are competent to show the situation then existing. State v. Maher, 276 S.W. 1034. (4) Sufficient evidence was offered to make a case against defendant. State v. Knight, 300 S.W. 719; State v. Janes, 1 S.W.2d 137; State v. Wheeler, 2 S.W.2d 779; State v. Smith, 1 S.W.2d 142; State v. Thompson, 289 S.W. 648; State v. Steelman, 300 S.W. 743; State v. Bishop, 296 S.W. 147; State v. McGinnis, 7 S.W.2d 259; State v. McMurray, 284 S.W. 806; State v. jackson, 283 Mo. 24; State v. Cook, 3 S.W.2d 365; State v. Cutter, 1 S.W.2d 97; State v. Barker, 294 Mo. 303; State v. Bailey, 8 S.W.2d 57. (5) Instructions numbered 1, 2 and 6, are in proper form and substance. Nor was it necessary to define the meaning of "hootch," "moonshine," "corn whiskey," or "intoxicating liquor." State v. Black, 289 S.W. 804; State v. Martin, 292 S.W. 39; State v. Thompson, 289 S.W. 648; State v. Nerzinger, 220 Mo. 49; State v. Cook, 3 S.W.2d 365; State v. Marshall, 297 S.W. 68; State v. Griffith, 311 Mo. 630; State v. Wright, 280 S.W. 706; State v. Knight, 300 S.W. 721; State v. Lando, 300 S.W. 767. (6) Appellant complains of the action of the court in directing the sheriff to inquire of the jury as to whether they had reached a verdict, and in bringing them into the court room and giving them further instructions. It was perfectly proper for the court to inquire as to whether they had arrived at a verdict and upon being informed that they had determined as to his guilt, but could not agree upon the punishment, to instruct them to return a verdict accordingly, as the court in such situation could assess the punishment upon a verdict of guilt where no punishment is assessed. Sec. 4048, R. S. 1919; State v. Nave, 285 S.W. 723; State v. Levan, 306 Mo. 507; State v. Hubbs, 294 Mo. 224; State v. Schmittzehe, 3 S.W.2d 235. The court did not err in permitting certain witnesses to testify concerning the contents of the jugs and to the character of the liquor offered in evidence. Lay witnesses may testify to the intoxicating character of liquor or that it is moonshine, hootch or corn whiskey. State v. Marshall, 297 S.W. 67; State v. Brock, 280 S.W. 48; State v. Sappington, 2 S.W.2d 729; State v. Stough, 2 S.W. 767; State v. Wheeler, 2 S.W.2d 779; State v. McGinnis, 7 S.W.2d 260; State v. Cook, 3 S.W.2d 365; State v. Knight, 300 S.W. 721; State v. Griffith, 311 Mo. 630; State v. Lando, 300 S.W. 767; State v. Black, 289 S.W. 804; State v. Pigg, 278 S.W. 1030.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Defendant was convicted in the Circuit Court of Boone County of the felonious transportation of hootch moonshine, corn whisky, sentenced to two years' imprisonment in the...