State v. Austin

• Decision Date: 11 June 1930
• Docket Number: 29829
• Citation: 29 S.W.2d 686
• Parties: STATE v. AUSTIN
• Court: Missouri Supreme Court

29 S.W.2d 686

STATE v. AUSTIN

No. 29829

Supreme Court of Missouri, Second Division

June 11, 1930

L. H Musgrave, of Springfield, for appellant.

Stratton Shartel, Atty. Gen., and Carl Otto, Asst. Atty. Gen., for the State.

OPINION

COOLEY, C.

Charged by information in the circuit court of Barton county with the crime of feloniously transporting corn whisky appellant was tried and convicted on April 13, 1929, and his punishment fixed by the verdict of the jury at two years' imprisonment in the penitentiary. From the sentence and judgment thereon he appeals.

The only point sufficiently preserved for review by appellant's motion for new trial is whether or not there was evidence to authorize submission of the case to the jury and to sustain the verdict.

The state's evidence shows that about half past 2 or 3 o'clock a. m., on February 12, 1929, witness Fernetti was driving westward in the highway near the town of Minden, when defendant's automobile, in which were defendant and one Lahy, going eastward, collided with Fernetti's car. A wheel and axle of Fernetti's car were broken by the collision so that he could not proceed. Defendant's car did not stop when the collision occurred, but, a very short distance east of that point, ran into a ditch and against a 'dump' at the side of the road left by steam shovels, which stopped it and damaged it so that it could not go on. Fernetti got out of his car, and after a little time, seeing defendant's car against the dump, went to it and found defendant out of the car and 'doing something around the car.' Witness then saw a jug or jar, which he described as a two-gallon jug, on top of the dump a few feet from the car. It was full of liquor, but witness did not examine the contents. Witness saw but one jug at that time. He then went to Minden, some half mile distant, to get men to move his car. While it is not made very clear, we gather from his testimony that defendant went with him and that they went first to the hotel, and the hotel keeper, at witness' request, telephoned a garage and also the sheriff, telling the latter that there was a man out there who had a load of liquor; that witness left the hotel to see the garage keeper and after an hour or so, having arranged with men to go after his car, returned to the hotel and found defendant no longer there. Asked if he had seen defendant any more, he testified:

'After we went back out there we met Austin on the road, back toward town.

'Q. From his car? A. Yes, so we pulled my car in, and Austin came back up town and we went back to get Austin's car and that is the time I seen some more jugs.'

Witness said he saw two or three more jugs or jars, filled with colored liquor, in a ditch 'a little ways from the car.' He also saw some bottles 'out there.' Either at that time or when he first went to defendant's car after the collision, it is not clear from the evidence which time, the witness noticed the odor of whisky about defendant's car.

Several hours after the collision the sheriff and a deputy arrived upon the scene. They testified that there was snow on the ground so that tracks could easily be seen and that there were tracks of two men, as shown by the difference in size of the footprints, leading from defendant's car to the place where they found four gallon jars containing liquor. The deputy sheriff testified: 'I went up on that dump to the north end of it and looked across and in looking across I saw some gallon jars laying on the snow, and looked as if they had been thrown there, down into the snow, and I went over there, the snow was something like knee deep and the jars were on top of that. The tracks went to the opposite side of that dump from where the car was and it just appeared as though those jars had been thrown there.' He also discovered a bottle containing some liquor sticking out of the snow where it had been thrown.

The sheriff corroborated the above testimony, and testified on cross-examination that 'those tracks were made by whoever got out of that car,' and further, 'I can't see how it (the whisky) could have been put there by any one except the fellows that got out of the car, there were no other tracks;' that one of the two sets of footprints corresponded in size to defendant's. Lahy had disappeared and was not seen by the officers.

It was also shown by the testimony of the officers that the liquor remaining in the jars and bottle was corn whisky; that there was a strong odor of whisky about defendant's car; and that defendant, when they arrived, was under the influence of liquor and showed signs of having been drunk, one of them thought. The sheriff testified that he talked to defendant about the whisky, and 'when I would ask him anything concerning it he would say 'you didn't find any whisky in the car, did you?' He answered me that way three or four times.'

Defendant testified, admitting his ownership of the car, but denying that he owned or had transported the whisky or had any knowledge concerning it. He said he lived in Springfield Mo., had been to Pittsburg, Kan., and was on his way home at the time of the collision; that Lahy was with him part of the way going to Pittsburg but got out of the car at a little town called Frontenac, where he (defendant) picked Lahy up on his return journey, and that Lahy was driving the car at the time of the collision; that he did not know where Lahy went or what became of him after the collision. He admitted having previously...