State v. Dalton

• Decision Date: 11 December 1929
• Docket Number: No. 29437.,29437.
• Citation: 23 S.W.2d 1
• Parties: STATE v. DALTON.
• Court: Missouri Supreme Court

23 S.W.2d 1

STATE v. DALTON.

No. 29437.

Supreme Court of Missouri, Division No. 2.

December 11, 1929.

Appeal from Circuit Court, Macon County; V. L. Drain, Judge.

William M. Dalton was convicted of transportation of intoxicating liquor and prior conviction of robbery, and he appeals. Affirmed.

J. H. Whitecotton, of Paris, and Clinton B. Haines, of Macon, for appellant.

Stratton Shartel, Atty. Gen., and Ray Weightman, Asst. Atty. Gen., for the State.

DAVIS, C.

An information filed in the circuit court of Shelby county charged defendant, under section 3702, Revised Statutes 1919, and section 21, p. 242, Laws 1923, with having theretofore been convicted of the felony of robbery and with the transportation of hootch, moonshine. The court sustained defendant's application for change of venue, and the cause was sent to and tried in Macon county. Under the instructions of the court the jury returned a verdict assessing the punishment at five years in the penitentiary. Defendant appealed from the judgment entered on the verdict.

The facts adduced on the part of the state warrant the finding that during the afternoon of October 30, 1926, defendant, accompanied by his wife, drove an automobile from Hannibal to Shelbina. They came into Shelbina over highway 36, and upon crossing the railroad track proceeded south about two blocks, thence west two or three blocks, then turned around and returned, and stopped the automobile near the intersection of Center and Main streets in Shelbina. The car was provided with side curtains. The cushion was taken from the back seat, and in said seat on the car's arrival in Shelbina there was found 12 gallons of hootch, moonshine, covered with a blanket or burlap. Deputy Sheriff Douglas saw the car come into the town and stop. He observed a man talk with some one in the car and then proceed down the street. He did not know this man. Douglas went to the car, opened the right front door, and told the defendant he had a search warrant for his car and to hold up his hands. Douglas was joined by Marshal Brown and Deputy Sheriff Farmer, who also observed the car come into town and stop. Sheriff Orr took charge of both defendant and the whisky. He sealed the jugs containing the whisky and placed them in a bank vault in the Shelbyville Bank, where they were kept until the day of the trial, except a small portion of the contents, which was delivered to Dr. Stokes for analysis. Dr. Stokes analyzed it and it tested 96 per cent. proof whisky.

The facts further show that defendant had been convicted in the circuit court of Marion county, Missouri, of the felony of robbery, and sentenced for a term of five years in the state penitentiary, and that he was delivered to the penitentiary and was discharged upon compliance with his sentence under the merit system.

Defendant testified that he operated a cigar store in Hannibal. The day before he was apprehended in Shelbina a man by the name of Goben, representing himself to be a deputy sheriff of Shelby county and displaying a star and a gun, agreed with him to pay him to take some packages from Hannibal to Shelbina. Goben, he said, placed these packages in the car. He told Goben where to find the car. On October 30, 1926, about noon, he received a telephone call from Goben, who directed him to take the packages in the car to Shelbina that afternoon. Defendant stated that Goben did not advise him of the contents of the packages, and that, when he stopped at the place where he was apprehended, Goben first met him, waving a white handkerchief, and left just before Deputy Sheriff Douglas arrived.

Vern Studer, a witness for defendant, stated that he knew Goben, and, while he did not introduce Goben to defendant, he took Goben to see defendant. He also stated that he saw defendant and Goben together on the day in question. Studer entered a plea of guilty to the transportation and sale of liquor in the Shelby county circuit court a few days after defendant was arrested.

In rebuttal, Deputy Sheriff Douglas testified that, when he first apprehended defendant, in answer to a question as to what he received a gallon for it, defendant stated that he got $8 a gallon for it. Other pertinent facts, if any, will appear in the course of the opinion.

I. A motion to quash the information was filed on the ground that it did not state facts sufficient to constitute an offense. The information avers, in substance, that it is upon the appended oath of the prosecuting attorney, and that defendant, in 1921, in Marion county, Missouri, was found guilty of robbery and sentenced to the penitentiary for five years, and was received there May 21, 1921, and was discharged under the merit system May 26, 1924, after complying with his sentence, and then proceeds as follows: "And did on or about the 30th day of October, 1926, after being discharged from State penitentiary, in the County of Shelby in the State of Missouri, willfully, unlawfully and feloniously transport certain intoxicating liquor, to wit, about twelve (12) gallon of hootch, moonshine," etc. The complaint is that the information, following the italicised word and, does not repeat and reiterate the averment that the prosecuting attorney upon his oath deposes, presents, avers, and charges that William Dalton did, on or about the 30th day of October, 1926, etc., transport certain intoxicating liquor, to wit, hootch, moonshine. It is said that the information thus lacks a charge that defendant committed the crime of transportation. We think that the initial averment, to wit, that the prosecuting attorney upon his oath deposes, presents, avers, and charges, by the use of the word and, refers and relates to the charge that defendant transported intoxicating liquor. If it does so refer, and we think it does, it was unnecessary to repeat the averment. The attack made on the information is untenable.

II. (a) The court is charged with error in refusing to grant defendant's application for a continuance. The application avers the absence of two important witnesses without fault on the part of defendant. However, it does not substantially comply with the provisions of section 3997, Revised Statutes 1919. Among other things, it is not stated in the application that defendant believes to be true the facts that the application avers the absent witnesses would swear to. State v. Martin, 317 Mo. 313, 295 S. W. 543.

(b) The affidavit develops that there was pending on the court's docket against defendant's wife a charge of transporting intoxicating liquor. The wife's case preceded on the docket the case against defendant. The affidavit further shows that the prosecuting attorney informed defendant's attorneys that he proposed to try the case against defendant's wife, resulting that the defendant's attorneys prepared the wife's case for trial. When the wife's case was called, and her attorneys announced ready for trial, the prosecuting attorney dismissed it. Seemingly defendant's case was then called for trial, and, in due course, the trial proceeded. Defendant complains, pursuant to the above grounds, that the court erred in refusing to grant him a continuance.

Defendant's case was on the docket that day for trial. We may assume that it had been regularly set for trial, and that defendant had notice of it, for he was there with his attorneys. Notwithstanding that defendant's attorneys represented his wife, it was their duty, in the absence of an agreement with the prosecuting attorney that the case would not be tried when called, to prepare for trial. It is common knowledge that other cases, preceding a certain case on the docket, may not be tried. The continuance of the case on the ground of surprise was within the discretion of the trial court, and we cannot say, in view of the record before us, that the trial court abused its discretion.

III. Defendant maintains that the court erred in refusing to quash the search warrant and suppress the evidence, because of the invalidity of the search warrant. A review of the record fails to advise that a motion to quash the search warrant and suppress the evidence was filed. The question of the validity of a search warrant and the admissibility of evidence obtained by virtue of a search raises a collateral issue, which must be tried in a proceeding independent of the issue of guilt. Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177.

IV. The refusal of the trial court to instruct the jury to acquit defendant is challenged. In this connection it is said that the evidence conclusively shows an entrapment. The question of instructing a jury to acquit a defendant involves the state's evidence only, and, in determining that question, the defendant's evidence cannot be considered, unless the state admits it to be true, which is not the case here. We are unable to conclude that the state's evidence develops an entrapment. State v. Decker (Mo. Sup.) 14 S.W.(2d) 617, loc. cit. 619; Craig v. Rhodes (Mo. Sup.) 298 S. W. 756.

V. Defendant attacks instruction 1 given to the jury. It is unnecessary to quote it. In discussing it, we are not authorized to consider alleged errors that are not noted in the motion for a new trial.

(a) It is urged that the record is without substantial evidence that defendant transported hootch or moonshine: The state's witnesses testified that they examined the contents of at least one jug; that they were familiar with the odor of hootch and moonshine, which in their opinion was the same thing, and from smelling it they would say it was hootch or moonshine. A chemist testified that the contents analyzed 96 per cent. proof, and that it was whisky. This evidence was sufficient for that purpose.

(b) It is further said that the testimony was insufficient to authorize the court to instruct the jury relative to the former conviction of defendant. The record shows that there was introduced in evidence at the...