State v. Connor
| Decision Date | 12 December 1927 |
| Docket Number | 27919 |
| Parties | The State v. Walter Connor, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court; Hon. Ralph Hughes Judge.
Affirmed.
North T. Gentry, Attorney-General, and Claud Curtis Special Assistant Attorney-General, for respondent.
(1) The information sufficiently charges the defendant with violating the Prohibition Law. State v. Brown, 285 S.W. 995; State v. Pinto, 279 S.W. 144; Sec. 21, Laws 1923, p 242; State v. Brown, 304 Mo. 78; State v. Sandoe, 289 S.W. 890. (a) It is not defective because no venue was stated in the body of the charge. Marginal venue is sufficient. Sec. 3900, R. S. 1919; State v. Jennings, 278 Mo. 544; State v. Moore, 203 Mo. 624; State v. Hunt, 190 Mo. 353. (b) Anyway, the information herein is good after verdict. Sec. 3908, R. S. 1919. (2) The evidence was sufficient upon which to base the verdict of the jury. State v. Nave, 285 S.W. 723; State v. Milstead, 285 S.W. 429; State v. Vesper, 289 S.W. 862; State v. Helpley, 279 S.W. 701; State v. Thompson, 289 S.W. 648; State v. Henke, 285 S.W. 392; State v. Bishop, 296 S.W. 147. (3) The court properly overruled defendant's motion to suppress the evidence. The circumstances justified the search of defendant's car without a search warrant. State v. Padgett, 289 S.W. 954; Carroll v. U.S., 267 U.S. 132; State v. Hall, 279 S.W. 102; State v. Pigg, 278 S.W. 1030. (4) The verdict, which is general, is sufficient since there was but one charge in the information. State v. Martin, 230 Mo. 680; State v. Bishop, 231 Mo. 411; State v. Jordan, 285 Mo. 62.
Henwood, C. Higbee and Davis, CC., concur.
By an information filed in the Circuit Court of Carroll County, appellant and one John Vanderpool were jointly charged with the unlawful transportation of moonshine. The State dismissed as to Vanderpool before the trial. Appellant was convicted and the jury assessed his punishment at a fine of $ 500. Following judgment and sentence on the verdict an appeal to this court was allowed.
The information, being attacked, should be quoted in full. Omitting only the affidavit and endorsements, it reads as follows:
The State's evidence showed that the deputy sheriff (Fuller) on the evening in question "started out to look for a car a couple of men was driving." His attention was attracted to a Ford coupe parked lengthwise in the middle of Folger Street opposite the county jail in the town of Carrollton, Missouri. As he approached the car he detected the odor of whiskey. Looking through an open window of the car he saw in the car a jug which smelled like whiskey. About that time the witness Al Gonder came along and he also smelled whiskey. At the request of the deputy sheriff, Gonder came from the sidewalk to the car in the middle of the street and found one of the car doors open. The deputy sheriff examined the jug and then delivered the same into the custody of the sheriff (Odell). Sometime later in the evening the deputy sheriff arrested appellant and Vanderpool, at which time both were intoxicated. The deputy sheriff said "they were both so darned drunk they didn't know what they were doing." The next morning, when in jail, appellant told the deputy sheriff that he was driving the car, but it belonged to "young Flanigan." The jug of whiskey was identified at the trial and pronounced by several witnesses as "whiskey" and by some as "corn whiskey," "moonshine" or "white mule." Two ladies (Mrs. Aubrey Higgins and Miss Inez Burkhart) testified that they were standing on the sidewalk nearby and saw appellant drive up and park the Ford coupe about 9:15 or 9:30 on the evening in question; that appellant was the only person in the car and, within ten or fifteen minutes after he got out and left the car, the deputy sheriff came along and captured the jug; and that during the interim, no one went near the car.
Defendant took the stand and admitted that he drove the Ford coupe from the town of Norborne, Missouri, into Carrollton, and parked the same where the deputy sheriff found it, but said it was about eight o'clock in the evening when he left the car there. He denied having any liquor in the car. On cross-examination, when asked if he knew how the jug of whiskey got into the car, he said: "Well, there could only be one possible chance, and that was the fellow that sold Missouri rulers, in a carnival, came down here and asked me to ride back home with me, and I told him he could, and that would be the only possible chance for it to get in there." He further said this fellow was called "Shorty Brenan," and that he never saw him any more after he (appellant) was arrested. Two witnesses, E. M. McBee, City Marshal of Norborne, and Charles E. Porter, testified to appellant's previous good reputation.
Appellant has filed no brief, but we will now consider all assignments of error contained in his motion for a new trial which are properly reviewable by this court.
I. It is contended that the information is insufficient because no venue is stated in the body thereof. This contention is overthrown by positive statutory enactments of long standing. Section 3900, Revised Statutes 1919, provides that --
"It shall not be necessary to state any venue in the body of any indictment or information; but the county or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the same."
Section 3908, Revised Statutes 1919, says:
"No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: . . . for want of a proper or perfect venue; nor for want of any venue at all."
The sufficiency of the information is further challenged because the word "willfully" is omitted from the charging part of the same. It should first be noted that the information charges the act to have been done "unlawfully and feloniously." The use of these words imports an exercise of the will or that the act was done "willfully," unless the statute defining the crime makes willfulness an element thereof. See Howenstine v. United States, 263 F. 1, and authorities cited. Next, it should be noted that neither of the words, "unlawfully," "feloniously," or "willfully" are used in Section 21 of the 1923 Prohibition Act, in defining the crime charged in this case. Section 21 provides that "if any person shall manufacture, make, brew, distill, sell, give away or transport any 'hootch,' 'moonshine,' 'corn whiskey' shall be guilty of a felony," etc. [See Laws 1923, p. 242.] This court has held that it is sufficient to charge that any act prohibited by this section was "unlawfully" done, because the section says that any person who does any of the acts prohibited "shall be guilty of a felony." [State v. Wright ...
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