State v. Carter

• Decision Date: 28 October 1933
• Docket Number: 33195
• Citation: 64 S.W.2d 687
• Parties: STATE v. CARTER
• Court: Missouri Supreme Court

64 S.W.2d 687

STATE v. CARTER

No. 33195

Supreme Court of Missouri, Second Division

October 28, 1933

G. W Thornberry, of Galena, and Rex V. McPherson and Robert Stemmons, both of Mt. Vernon, for appellant.

Roy McKittrick, Atty. Gen., and Wm. Orr Sawyers, Asst. Atty Gen., for the State.

ELLISON P. J., and LEEDY, J., concur.

OPINION

TIPTON, Judge.

This appeal is from a conviction of the appellant on October 3, 1932, in the circuit court of Stone county, Mo., for the violation of section 4517, R. S. 1929 (Mo. St. Ann. § 4517, p. 4683), carrying a deadly weapon while in an automobile in which intoxicating liquor was being unlawfully transported.

On December 11, 1931, appellant was driving alone in his automobile on state highway No. 13 near the village of Crane in Stone county, Mo. His car collided with one driven in the opposite direction by a man named Gamble; both cars were damaged. Gamble went to a nearby schoolhouse and telephoned for the sheriff and some one to tow his car. When he returned to the scene of the accident, appellant had gone. Gamble, with another person, overtook appellant on the other side of town, and appellant returned to town with them; appellant agreed to pay for the damages to Gamble's car. The officers searched appellant's car, and found therein a gallon of whisky, some broken whisky jugs that smelled of whisky, a sawed-off shotgun, a Winchester 22 caliber repeating rifle, ammunition for the shotgun and rifle, and a box of ammunition to fit a 38 caliber automatic or revolving pistol.

Appellant testified that he was returning home from visiting friends in Stone county, Mo., when the accident occurred; that he had the guns in the car for the purpose of killing turkeys and wild game on the trip; that he had the whisky for his personal use, and was returning it to give to friends for Christmas gifts. Several witnesses testified that his reputation as a law-abiding citizen was good.

I. The appellant contends that the information is fatally defective. The information alleges that the appellant 'did then and there, while in charge of an automobile in which he was then and there unlawfully transporting intoxicating liquor, * * * against the peace and dignity of the state.' It is the appellant's contention that the information does not comply with section 4517, supra. This section requires that the intoxicating liquor must be 'carried, conveyed or transported in violation of any provision of the laws of this state.' Webster's New International Dictionary gives 'violation of the law' as one of the definitions of the word 'unlawfully.' In State v. Hoffman (Mo. Sup.) 297 S.W. 388, loc. cit. 389, in an opinion by White, J., we said: 'The rule is that in a statutory offense it is not always necessary to use the exact language of the statute in describing the offense. It is sufficient if it uses language of similar import, not repugnant to the words of the statute. State v. Harroun, 199 Mo. 519, 98 S.W. 467; State v. Tiemann (Mo. App.) 253 S.W. 453; State v. Standifer, 209 Mo. loc. cit. 273, 108 S.W. 17.'

We believe that the use of the word 'unlawfully' and the phrase 'against the peace and dignity of the state' is in substantial compliance with the statute to inform the appellant that he is charged with the offense of transporting intoxicating liquor in violation of the laws of this state. The argument that the information might charge the appellant with transporting liquor in violation of the national prohibition laws is without merit.

The appellant relies upon the case of State v. Rector, 328 Mo. 669, 40 S.W.2d 639. The information in that case failed to state that the transportation of the intoxicating liquor was in violation of any law of this state, nor did it contain allegations of like import. That information failed to negative the fact that the transportation of the intoxicating liquor might have been lawful. We believe for that reason that that case is distinguished from the case at bar. The information is sufficient to sustain the verdict.

II. The appellant contends that the demurrer to the evidence should have been sustained. In his brief he states that the evidence failed to show that the intoxicating liquor was being transported in the car and not on his person. Section 4523, R. S. 1929 (Mo. St. Ann. § 4523, p. 4685), defines 'transport' and 'transportation,' as used in the chapter relating to intoxicating liquor, to mean and to include every mode, method, and means of carrying or conveying intoxicating liquor from place to place in any container, or receptacle, of whatsoever kind or character, and by whatever means used, except carrying intoxicating liquor on the person.

We believe that the evidence is sufficient to show that the liquor was being transported in the car. In the first place, the appellant testified that he had four gallons of liquor and, furthermore, the liquor was found in the car by the officers.

III. Appellant assigns error in giving instruction No. I, which is as follows: 'The Court instructs the jury that if you find and believe from the evidence in the case and beyond a reasonable doubt that the Defendant, W. E. Carter, at and in the County of Stone and State of Missouri, on or about the 11th day of December, 1931, did then and there, while in charge of an automobile in which he was then and there unlawfully transporting intoxicating liquor for sale and not for personal use did then and there carry in said car a shotgun and a rifle, you will find the defendant guilty as charged in the information and assess his punishment in the State Penitentiary for a term of not less than two years; and unless you do so find the facts to be, you will find the defendant not guilty.'

Appellant contends that it did not require the jury to find that the whisky was transported in the automobile and not on the person of the defendant. If the intoxicating liquor is carried on the person of the accused, then it is not illegal to transport it. Section 4523, supra. This instruction required the jury to find that the appellant was in charge of the automobile, and then after the word 'automobile' followed by the phrase 'in which he was then and there unlawfully transporting intoxicating liquor for sale * * *' (Italics ours) was equivalent to requiring the jury to find that intoxicating liquor was being transported in the automobile and not on the person of the appellant. The jury could not have been misled by this instruction.

The court did not define the word 'transporting.' It is a word in general use, and has no technical signification, and the jury understood its meaning. The appellant did not ask an instruction defining it.

In State v. Padgett, 316 Mo. 179, 289 S.W. 954, 957, speaking through Walker, P. J., we said: 'While the word 'transportation' has frequently been defined in cases of the character under review, the failure of the court to define it in this case is not deemed to be error. It is a familiar word in our vernacular; has no technical signification; its use is general; and the jury could not have failed to understand its meaning. As we, in effect, said in State v. Griffith, 311 Mo. 630, 279 S.W. 135, loc. cit. 140, it is only where terms employed may not be readily comprehended by the jury that their definition is required. Furthermore, if the defendant had desired its definition, he should have asked an instruction defining it.'

There is no error in giving this instruction.

IV. The appellant assigns as error the refusal to give instruction 'B' which is as follows: 'The Court instructs the jury that if you find and believe from the evidence in this case that the defendant was transporting the rifle and shotgun, mentioned in the evidence, from Stone County, Missouri, where he had been using the same for hunting or sporting purposes only, to his home in Lawrence County, Missouri, then you will find the defendant not guilty of the charge in the information.'

The appellant testified that he had been hunting in the White River district and was returning home; that the shotgun was unloaded; and that there...