State v. England
| Decision Date | 18 December 1928 |
| Docket Number | 29169 |
| Citation | 11 S.W.2d 1024 |
| Parties | STATE v. ENGLAND |
| Court | Missouri Supreme Court |
Stratton Shartel, Atty. Gen., and Smith B. Atwood, Asst Atty. Gen., for the State.
An information was filed in the circuit court of Barry county by which appellant was charged, in the first count, with the unlawful transportation of moonshine whisky, and, in the second count, with the unlawful possession of moonshine whisky. The venue was changed to the circuit court of Lawrence county, and thereafter, and before the trial, the state entered a dismissal as to the first count. A jury being waived, appellant was tried before the court on the second count, and the court found him guilty and assessed his punishment at a fine of $ 200. He was granted an appeal to the Springfield Court of Appeals, and the case is here by transfer from that court, because, on the face of the record the construction of a provision of the Constitution is involved. State v. England (Mo. App.) 8 S.W.2d 1077.
The state's evidence shows that, on March 6, 1926, two deputy sheriffs went to appellant's home in the town of Cassville, in Barry county, with a search warrant, and 'found a bottle there with a small quantity of whisky, in his yard under a sack.' They had information that appellant 'had been hauling some liquor around that morning,' and, shortly after they found the bottle of whisky in his yard, appellant and another man (Emmet Freeze) 'come driving up the street in a car and stopped just north of England's house near a gate.' One of the officers told appellant they 'would have to search his car and he said alright.' When appellant got out of the car, the officers saw a pint bottle of liquor in one of his coat pockets. They told him they 'would have to arrest him,' and, when they 'grabbed' the bottle of liquor, 'a big scuffle started.' While the 'tug of war' was going on, the sheriff arrived at the scene of action, and assisted in taking two more pint bottles of liquor from appellant's pockets. The three pint bottles of liquor, which were taken off of appellant's person, were produced at the trial. The sheriff (Brixey) said that he smelled and tasted the liquor, and one of his deputies (Sallee) said that he 'examined it.' Both of them testified that it was 'moonshine whisky.'
No evidence was offered by appellant, and he has filed no brief in this court. In his motion for a new trial, he has preserved for our review only two questions: First, an attack on the information; and, second, a challenge of the sufficiency of the evidence.
I. The attack on the information presents a novel situation. The record shows that, on May 10, 1927, in the circuit court of Lawrence county, the prosecuting attorney 'by leave of the court dismisses the first count of the information.' Thereafter, and on the same day, appellant filed a motion to quash the information, asserting, in substance, that the information 'improperly joins a felony charge and a misdemeanor charge'; that defendant was arrested upon a charge of 'transporting liquor,' given a preliminary hearing, and bound over to the circuit court of Barry county; that 'in the circuit court the prosecuting attorney filed the information herein charging the defendant with feloniously transporting intoxicating liquor, a felony, and a charge of possessing liquor, a misdemeanor, which misdemeanor charge defendant nor his attorney had any knowledge of until a few days ago'; that defendant, without knowledge of the misdemeanor charge, took a change of venue to Lawrence county, 'and this date the prosecuting attorney now dismisses the charge of transporting liquor'; and that 'the court herein has no jurisdiction of the person of the defendant, nor the subject-matter of the charge of possessing intoxicating liquor.' When the court overruled his motion to quash the information, appellant filed a plea in abatement, asserting, in substance, the same facts as those asserted in his motion to quash, except the assertion that he and his attorney had no knowledge of the misdemeanor charge contained in the information, which was left out of his plea in abatement. He further asserted, in his plea in abatement, 'that said information and said charge is in violation of Section Thirty of the Constitution of Missouri, in that it deprives the defendant of due process of law.' The plea in abatement was verified by the affidavit of appellant, and, upon the prosecuting attorney's admission of the facts stated therein, no proof was offered in support thereof. When the court overruled his plea in abatement, appellant refused to plead, and 'the Court enters his plea of not guilty.'
As expressly held by this court in the case...
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