State v. Davis

Decision Date17 February 1932
Docket Number31675
Citation46 S.W.2d 565,329 Mo. 743
PartiesThe State v. William Davis, Appellant
CourtMissouri Supreme Court

Appeal from Lincoln Circuit Court; Hon. Charles T. Hays Special Judge.

Affirmed.

Chas W. Graves for appellant.

(1) The court erred in overruling defendant's motion to suppress the testimony, in that the defendant was arrested and charged by an improper arrest, search and seizure, both of his person and the automobile, and that the evidence so unlawfully obtained should have been suppressed. Tenpenny v. State (Tenn.), 270 S.W. 989; State v. Randolph (Mo.), 34 S.W.2d 55; State v. Bennett, 18 S.W.2d 52; State v. Dunivan, 269 S.W. 415; Best v Commonwealth, 268 S.W. 1089; Miles v. State, 235 P. 260; Bolt v. United States, 2 F.2d 922; State v. Ridge, 275 S.W. 60; State v. Eklof, 11 S.W.2d 1033. (2) The court erred in overruling defendant's motion to quash the information on the grounds that the charge was improperly pleaded in the disjunctive, when it should have been in the conjunctive and was not sufficient to apprise defendant so as to properly prepare defense. State v. Grossman, 214 Mo. 242; State v. Wyatt, 245 S.W. 583; State v. King, 285 S.W. 794; State v. Bilyen, 295 S.W. 195; State v. Harvey, 127 A. 275. (3) The court erred in overruling defendant's objection to the introduction of any testimony on part of the State. (4) There was a total failure of proof that the alleged "hootch or moonshine" contained more than one-half of one per cent alcohol by volume, that it was intoxicating, or that it could be used for beverage purposes. State v. Pinto, 279 S.W. 148; State v. Gurlin, 267 S.W. 899. (5) There was no proof that the areaway or alley where defendant was placed under arrest was an open or public highway or that defendant had or was transporting intoxicating liquor over or upon a public highway, or from any designated place to another. State v. Kurtz, 295 S.W. 747; State v. Harvey, 127 A. 275. (6) The court erred in permitting testimony that some undisclosed person informed the witness that defendant was transporting liquor. State v. Miller, 266 S.W. 1024; Bolt v. United States, 2 F.2d 922.

Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.

(1) The information charging transportation of "hootch, moonshine, corn whiskey" is in proper form and has been approved. State v. Howard, 23 S.W.2d 13. (2) The motion to suppress the evidence as well as the motion to quash the information are not before this court for review. Motions of this kind are matters of exceptions and must be preserved in the bill of exceptions and not the record proper. State v. Harrison, 292 S.W. 416; State v. Ball, 14 S.W.2d 643; State v. Marshall, 317 Mo. 418; State v. Caldwell, 22 S.W.2d 794; State v. Forshee, 308 Mo. 661; State v. Hembree, 37 S.W.2d 449. (3) It is not necessary to prove the alcoholic content of "hootch, moonshine or corn whiskey." The transportation of any of these is a felony and the court will take judicial notice that they are intoxicating and used as a beverage. State v. Mitts, 289 S.W. 937; State v. Hedrick, 296 S.W. 153; State v. Martin, 292 S.W. 40. (4) It is not required that transportation of liquor must be on a public highway. Sec. 4523, R. S. 1929. (5) It was proper for the sheriff to refuse the source of information upon which he had arrested the appellant. He had reason to believe a felony was being committed, and in that event the search was incident to the arrest. State v. Bailey, 8 S.W.2d 59; State v. Harlow, 37 S.W.2d 420; State v. Williams, 14 S.W.2d 435; State v. McNeece, 295 S.W. 738.

OPINION

Henwood, J.

The defendant appealed from a judgment of the Circuit Court of Lincoln County, where he was charged with the unlawful transportation of "hootch, moonshine, corn whiskey," found guilty, and sentenced to imprisonment in the penitentiary for two and one-half years. The case was tried before Honorable Charles T. Hays, judge of the Tenth Judicial Circuit, as special judge, the regular judge of the Circuit Court of Lincoln County having been disqualified.

The sheriff of Lincoln County and one of his deputies were the chief witnesses for the State. From their testimony, we gather the following:

About 8:30 o'clock Saturday evening, January 31, 1931, the sheriff and his deputy were stationed in a shed adjoining an alley in the town of Troy, in Lincoln County, watching for the defendant, and, through a window in the shed, saw the defendant drive a Buick coupe automobile "up" to the mouth of the alley, stop the automobile, get out of the automobile, and walk "up" the alley toward the rear entrance of a barber shop. The sheriff stepped out of the shed into the alley with his revolver in his hand, and arrested the defendant, a minute or two later, as he was returning from the barber shop to the automobile. The sheriff then fired one shot with his revolver as a signal to his deputy to come out of the shed and search the automobile. The doors and the rear compartment of the automobile were locked, and when the sheriff demanded the keys to the automobile, the defendant said he did not own the automobile or have the keys to the automobile in his possession. The deputy started to search the defendant, and the defendant handed the keys to him. The deputy unlocked the automobile, and found, on the seat and in the rear compartment, thirty-six short quart bottles of liquor, labeled "Gordon Dry Gin," three short quart bottles of liquor, labeled "Apricot Brandy," and ten short pints of liquor, labeled "Old Smugler Whiskey." The liquor was taken from the automobile and kept in the custody of the sheriff until the day of the trial.

The sheriff further testified that he had examined one bottle of the so-called gin, one bottle of the so-called brandy, and one bottle of the so-called whiskey, by smelling and tasting the contents of said bottles; that the liquor contained in each of said bottles was "hootch, moonshine;" that "hootch and moonshine are the same thing;" and that he had previously examined intoxicating liquors on numerous occasions, in the discharge of his duties as sheriff.

All of the liquor found in the automobile was produced at the trial, admitted in evidence, and exhibited before the jury, in connection with the sheriff's testimony.

No evidence was offered on behalf of the defendant.

I. The sufficiency of the information was challenged by a motion to quash, and it is now contended that the trial court erred in overruling the motion.

It is charged in the information "that William Davis, on the 31st day of January, 1931, at and in the County of Lincoln and State of Missouri, did then and there willfully and unlawfully and feloniously transport hootch, moonshine, corn whiskey, contrary to the form of the statute made and provided and against the peace and dignity of the State." The information follows the language of the statute and covers all essential elements of the offense sought to be charged. [Sec. 4500, R. S. 1929.] It is sufficient. Similar informations have been approved by this court in numerous cases. [State v. Howard, 324 Mo. 145, 23 S.W.2d 11; State v. McGinnis, 320 Mo. 228, 7 S.W.2d 259; State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777.] The motion to quash the information was properly overruled.

II. The defendant also complains of the action of the trial court in overruling his motion to suppress the State's evidence, by which he challenged the legality of the search of the automobile and the seizure of the liquor found therein.

The sheriff and his deputy were the only witnesses offered in support of the motion, and their testimony in that connection was substantially the same as the testimony given by them at the trial of the case, as to the arrest of the defendant, the search of the automobile and the seizure of the liquor found in the automobile. But, in connection with the motion, the sheriff further testified that he had seen the defendant in Troy on two occasions prior to the occasion in question; that he was reliably informed that the defendant had been stopping his car in the alley behind the barber shop and...

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