State v. Askew

• Decision Date: 14 December 1932
• Docket Number: No. 32385.,32385.
• Citation: 56 S.W.2d 52
• Parties: THE STATE v. DEWEY ASKEW, Appellant.
• Court: Missouri Supreme Court

56 S.W.2d 52

THE STATE v. DEWEY ASKEW, Appellant.

No. 32385.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from Pike Circuit Court. — Hon. Edgar B. Woolfolk, Judge

AFFIRMED.

May & May for appellant.

(1) After the testimony of the deputy sheriff and the prosecuting attorney, Mr. Goodman, both the defendant and State announced that this was all the evidence, and the motion to suppress the evidence was submitted to the court. The court later reopened the case and allowed the State, over the strenuous objection of defendant to recall Officer Daniel to the witness stand. This officer then changed his testimony so as to assist the State, which was plain to all present, and in the trial of the case on cross-examination he admitted that his testimony on the motion had been different. State v. Williams, 14 S.W. (2d) 434; State v. Pinto, 279 S.W. 146; State v. Rebasti, 267 S.W. 860; State v. Harlow, 37 S.W. (2d) 421; State v. Bailey, 8 S.W. (2d) 58; State v. Harris, 22 S.W. (2d) 1050; State v. Davis, 46 S.W. (2d) 565; State v. Watson, 44 S.W. (2d) 132. (2) Defendant contends that the purported written confession could not be offered in evidence, because it was extrajudicial, made in the office of the prosecuting attorney, before the defendant had an opportunity to consult an attorney, and with not sufficient evidence of the corpus delicti to support it. That since the evidence in the case was obtained unlawfully without a search warrant and before defendant's arrest this evidence was not admissible, and therefore there was not sufficient independent proof of the corpus delicti to support this extrajudicial confession. State v. Young, 237 Mo. 177; State v. Bennett, 6 S.W. (2d) 882; State v. Willoby, 34 S.W. (2d) 8; State v. Mullinix, 237 S.W. 121. (3) The prosecuting attorney should not appeal to passion and prejudice. State v. Upton, 130 Mo. App. 316.

Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.

(1) The deputy sheriff testified that the defendant's companion who was in charge of the car had been arrested before the car was searched. The search was, therefore, not unlawful but was incident to the arrest. State v. Davis, 46 S.W. (2d) 566; State v. Harlow, 37 S.W. (2d) 421; State v. Williams, 14 S.W. (2d) 435; State v. Bailey, 8 S.W. (2d) 759. (a) The officers having been informed that the defendant was transporting liquor, were justified in making the arrest. State v. Harlow, supra; State v. Harris, 22 S.W. (2d) 1051; State v. Bailey, supra. (b) A search warrant for the car was not necessary in any event because the officer testified he could see the liquor in the back seat of the car. This was sufficient proof upon which to seize the whiskey. State v. Preslar, 300 S.W. 687; State v. Loftis, 292 S.W. 29. (c) The deputy sheriff identified the defendant as the driver of the car who had run when he attempted to arrest him, and the jury evidently believed the officer. State v. Miller, 12 S.W. (2d) 41. (2) An extrajudicial confession is not rendered inadmissible because the defendant's attorney was not present or notified at the time it was made. State v. Robinson, 263 Mo. 325. (a) Where there is even slight proof of the corpus delicti independent of the confession, that is sufficient. State v. McGuire, 39 S.W. (2d) 525; State v. Mabry, 22 S.W. 641. (3) The damaging part of the prosecuting attorney's argument was stricken out by order of the court. Whether or not counsel's argument is prejudicial is largely in the discretion of the trial court. State v. Nichols, 39 S. W. (2d) 780; State v. Oynn, 23 S.W. (2d) 141; State v. Mathis, 18 S.W. (2d) 10. (4) The house where the officers seized the glass jug which was in possession of defendant was not the defendant's home nor was he in possession of the house. The constitutional provision against unreasonable search and seizure does not, therefore, protect the defendant. State v. Fenley, 275 S.W. 40; State v. Pinto, 279 S.W. 147; State v. Morris, 279 S.W. 142; State v. Griffith, 279 S.W. 139.

FITZSIMMONS, C.

Appellant, tried in the Circuit Court of Pike County, was found guilty of transporting moonshine whiskey. The jury assessed his punishment at three months imprisonment in the county jail and a fine of $500. His motion for a new trial having been overruled and sentence imposed, he appealed to this court. The information charged appellant and one Henry Hull jointly. But appellant was granted a severance.

[1] I. A preliminary and basic question is whether the trial court rightly overruled appellant's motion to suppress as evidence certain moonshine whiskey taken from appellant's automobile. The motion to suppress the evidence was submitted to the court upon the testimony of Harve Daniel, a deputy sheriff of Pike County and constable of Cuivre township and of Wm. F. Goodman, prosecuting attorney of Pike County, both of whom were called by defendant. Immediately after the submission of the motion, the court at the request of the State over the objection of appellant, reopened the hearing in order that Daniel might be recalled as a State witness. In so doing the court acted within its sound discretion. The testimony given in the first part of the hearing was quite insufficient to advise the court fully upon the merits of the motion.

[2, 3] The testimony at the two hearings, summarized together, showed that the officers of Pike County had information that appellant was in the habit of transporting moonshine two nights each week, from Hannibal, his home city, to the dwelling house of a certain colored man in Bowling Green, the county seat of Pike County. The prosecuting attorney also had been informed that appellant was to make one of his trips on the morning of May 29, 1931. Deputy Sheriff Daniel, together with a Federal prohibition agent, went on that morning to the neighborhood of the house mentioned and waited. Daniel saw appellant drive his car to a stop in front of the house. Daniel recognized appellant and had a description of the car. Appellant left the car and carried from it into the house a gunny sack. Daniel and the prohibition agent who had been hiding in a pasture opposite the house, crossed the street, Daniel entering the house and the prohibition agent going to the car.

When Daniel got within the house he saw appellant in the kitchen take a jug from the sack and hand it to the colored man. Appellant was in the act of handing over a second jug when Daniel from another room said that he would take that one. At sight of Daniel appellant fled through the back door. Daniel called to him to stop, but appellant did not obey. Without any pursuit of appellant, Daniel ran out of the front door. When Daniel reached the street he saw appellant still running, but Daniel hastened to the automobile and said to Hull, appellant's codefendant, who was sitting in the rear seat: "`If I could not get him I will take you, — I will arrest you,' and then I searched the car." The search was made without a warrant. Daniel took appellant's car and its liquor contents and Hull to the courthouse in Bowling Green. The deputy sheriff and the prosecuting attorney then entered an automobile and drove along the highway toward Hannibal in search of appellant. On the way, a man on foot hailed them for a ride. Daniel recognized him as appellant, stopped the car and arrested him. This was about three quarters of an hour after appellant's car had been searched.

At two points in his cross-examination upon his second appearance as a witness on the hearing of the motion to suppress the evidence Daniel gave testimony bearing on the visibility of the contents of the car. The testimony was: "Q. You testified on direct examination that he (the prohibition agent) went over to the car and found the liquor, searched the car and found it? A. You couldn't help but see it." And again: "You found the liquor in this car while this man Hull was sitting over in the passenger's seat? A. I opened the door and seen it in there." The gist of appellant's argument in support of the motion to suppress as evidence the moonshine whiskey found in the car is that Deputy Sheriff Daniel, at the time of the seizure of the evidence, had not arrested appellant and did not have a search warrant, and therefore that he acted in violation of appellant's constitutional rights.

The law is settled that, if an officer has reason to believe that a person is committing a felony in transporting liquor, he has the right to arrest him without a warrant and to search him and the automobile, incident to the arrest. [State v. Harris, 324 Mo. 139, 22 S.W. (2d) 1050.] In the instant case, the officer saw ap...