State v. Gatlin.

• Decision Date: 31 December 1924
• Docket Number: No. 25746.,25746.
• Citation: 267 S.W. 797
• Parties: STATE v. GATLIN.
• Court: Missouri Supreme Court

267 S.W. 797

STATE v. GATLIN.

No. 25746.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Frank Gatlin was convicted of transporting corn whisky, and he appeals. Reversed and remanded.

G. Purd Hays, of Ozark, for appellant.

Jesse W. Barrett,' Atty. Gen., and William Vandeventer, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The defendant was convicted on a charge of transporting corn whisky, sentenced to the penitentiary for a term of two years, and appealed. The information charges that on or about the 1st day of December, 1923, at the county of Christian, Frank Gatlin did then and there unlawfully, willfully and feloniously transport hootch, moonshine, and corn whisky, contrary to the form of the statute made and provided, and against the peace and dignity of the state.

Section 21 of an act relating to intoxicating liquors, etc., Laws of Missouri, 1923, p. 236, approved April 3, 1923, provides:

"If any person shall manufacture, make, brew, distill, sell, give away, or transport any 'hootch,"moonshine,"corn whisky,' [he?] shall be guilty of a felony," etc. "Provided: that this section shall not apply in the case of corn whisky lawfully manufactured, transported, or sold."

1. The defendant moved the court to quash the information because (1) it charges no offense under the laws of the state; (2) the law on which the information is bottomed, being section 17 at page 241, Session Acts of 1923, of Missouri, is unconstitutional, and (3) the information does not negative the provision in said section 21 at page 243 of said Session Acts.

The information is in the words of the statute and sufficiently charges the offense. State v. Brown (Mo. Sup.) 262 S. W. 710. We are not concerned about the constitutionality of section 17 of the Act. By express provision of section 6596, R. S. 1919, applicable to prosecutions for violations of article 7 of chapter 52, R. S. 1919, it was unnecessary to negative the exceptions mentioned in the proviso of the section. Where, as here, the proviso is a separate and distinct clause or part of the statute, disconnected from that part which describes the offense, no such negative averment is necessary; it is a matter of defense. State v. Bockstruck, 136 Mo. 335, 351, 38 S. W. 317; State v. Smith, 233 Mo. 242, 253, 135 S. W. 465, 33 L R. A. (N. S.) 179; Kelley's Crim. Law, p. 149. The-motion to quash was properly overruled.

The evidence for the state tends to prove that the defendant came to the house of Amos Johnston, city marshal of Ozark, and deputy sheriff of Christian county, at about 3 o'clock on the morning of December 1, 1923. Johnston's house is near the railroad bridge over the river. Defendant told Johnston he wanted him to pull him out of the river. He said his partner was looking for some one to pull him out of the creek. (The words creek and river are used interchangeably) Defendant was wet and cold and sat down by the fire and again asked Johnston to pull him out of the river. Johnston told defendant he would find some one to pull him out in the morning and gave defendant a pair of overalls. When defendant got up he staggered, put on the overalls, laid down by the fire 15 or 20 minutes, got up and staggered to the front door, went out on the porch and vomited, came back and laid down again. Johnston sat there a while, then went and got Bob Logan and they went to the car which was stalled in the river. Johnston waded in but found nothing in the car. Seeing a light in the telephone office, they went there. A man by the name of Jack Dunn was in the office telephoning to one Ben Cassinger at 1417 W. Water St., Springfield. Dunn was a large man, weighing 190 to 200 pounds. Johnston, Logan, and Dunn then went to Johnston's house. Dunn asked Johnston if he might talk to this man (meaning the defendant) who was still there. They, Dunn and Gatlin, talked about getting the car pulled out of the river. Dunn told the defendant he would pay for getting it pulled out. Johnston's boy said he would pull it out for $1 and Dunn took out two $1 bills, and Gatlin said he would give him another dollar when the car was pulled out in the morning, when they got ready to leave. Dunn said to Gatlin, "Well, come on in the morning." He said he was going on right away. Dunn had sent (telephoned) to Springfield for a car, and Gatlin was to wait for his own car until the next morning. They remained at the house about 30 minutes. Johnston and Dunn then went to the bridge; they saw the car for which Dunn had telephoned coming down the hill. The car came on down and the driver, Cassinger, said, "Hello, Jack," and got out. Dunn went off a little distance and came back with two jugs to the car, set them down and went back and got the rest, five gallons in all, in three jugs and four half-gallon fruit jars. The man in the car, Cassinger, said, "You ain't going to put that stuff in this car; I ain't going to haul it for you." Dunn started to put in the car and "then the trouble started." They had the whisky just across the creek about 100 feet from the bridge. The car was on the west side in the ford of the creek below the mill, under the railroad bridge. Cassinger objected to putting the whisky in the car. Johnston then tried to arrest Dunn, but Dunn struck at him and they fought for a while and during the affray Johnston shot Dunn in the throat, severing the jugular vein. The man in the car, Cassinger, then started toward Johnston when the latter said, "Stop, or `I. will shoot you." During all this time Gatlin was at Johnston's house. Johnston called assistants. An undertaker drove a hearse to the scene and took charge of the corpse. Johnston loaded up the whisky and took it to town. The sheriff went to Johnston's house and arrested Gatlin. Gatlin told Johnston, when he first came to the house, that he had come from Branson, in Taney county, which lies south of Christian county. It was admitted the car in the creek was defendant's property; it was a six-cylinder Studebaker. The jugs and fruit jars mentioned...