State v. Cooper, 17021.
| Decision Date | 01 December 1930 |
| Docket Number | No. 17021.,17021. |
| Citation | 32 S.W.2d 1098 |
| Parties | STATE v. COOPER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Chariton County.
"Not to be officially published."
Romie Cooper was convicted of unlawful possession of liquor, and he appeals.
Reversed, and defendant discharged.
Ray Crow, of Keytesville, for appellant.
Roy B. McKittrick, of Salisbury, for the State.
Defendant and John Henry Hayes were, by the information of the prosecuting attorney of Chariton county, Mo., charged with the crime of "unlawfully possessing one quart of intoxicating liquor, to-wit, moonshine whisky." Severance by the court upon the motion of Hayes was ordered. Defendant Cooper was tried, found guilty, sentenced, and appeals.
Neither the prosecuting attorney nor defendant has favored us with statement or brief, but, in obedience to the mandate of the statute, we have examined the records certified to us in this cause.
By motion for new trial the sufficiency of the evidence to sustain a conviction is challenged. The evidence is that on June 1, 1929, defendant was riding in an automobile, Hayes driving, on one of the main highways of Chariton county; that the sheriff of that county called to them to stop. The order was not obeyed, and it is not clear that it was heard. The sheriff was not armed with a warrant for the arrest of either of the occupants of the car and does not assign any reason for calling upon them to stop. The order to stop being unheeded, the sheriff and his deputy opened fire, but the bullets were as ineffective as the order to stop. Following the barrage the speed of the proscribed automobile was not increased or decreased. As the car proceeded on its way it is shown that it swerved more or less, and on one of the occasions witnesses say an article or object was thrown from the car. The sheriff and his deputy gave chase and overtook the defendant and his companion in about one-half mile, and the occupants of the car were, by the sheriff, again ordered to stop. The sheriff searched the car and found "nothing to speak of," went back to one of the places where the car swerved, at or near which other witnesses said something was thrown from the car, and there found a bottle containing moonshine whisky. There is no evidence that those who found the bottle of liquor, or those who were present at that time, made any search or effort to ascertain whether there was any other object at the side of the road at or near the place in question. Neither did any witness attempt to say the defendant threw the object, whatever it was, from the car, but all expressly stated that they did not intend to say that he ever had possession of that object. A witness in a position more favorable than that of any other to observe the kind of object was asked:
There is no evidence as to whether the defendant was a passenger, invitee, licensee, or owner of the car.
The court by instruction No. 7 told the jury that, when...
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