State v. Hardy

• Decision Date: 20 December 1930
• Docket Number: No. 30269.,30269.
• Citation: 34 S.W.2d 102
• Parties: THE STATE v. WILLIAM HARDY, Appellant.
• Court: Missouri Supreme Court

34 S.W.2d 102

THE STATE v. WILLIAM HARDY, Appellant.

No. 30269.

Supreme Court of Missouri, Division Two.

December 20, 1930.

Appeal from St. Clair Circuit Court. — Hon. W.L.P. Burney, Judge.

REVERSED AND REMANDED.

Thomas E. Deacy and Jacobs & Hendersen for appellant.

(1) The search of the automobile without a search warrant was unreasonable, and without probable cause, and therefore illegal and void, and the trial court erred in overruling appellant's motion to suppress, and in admitting in evidence, over appellant's objection, the liquor in question. State v. Owens, 295 S.W. 100; State v. Harris, 22 S.W. (2d) 1050; State v. Hall, 279 S.W. 102; Sec. 2, Art. 2, Constitution of Missouri; Sec. 25, Laws 1923, p. 244. (2) The prosecuting attorney, Edward Myers, was disqualified by his interest in the case, and the court erred in permitting him, over the objection of the appellant, to act as such, and to testify in the case as a witness. State v. Jones, 268 S.W. 83; Secs. 4 and 12, Art. 2, Mo. Constitution; Secs. 742, 3849, R.S. 1919. (3) The State failed to prove that there had been an illegal transportation of hootch, moonshine or corn whiskey, and that appellant had been guilty of any transportation of such liquor, and the court should have sustained appellant's demurrer and directed a verdict of not guilty. State v. Perkins, 18 S.W. (2d) 6; State v. Ross, 300 S.W. 717; State v. Smith, 300 S.W. 1081; State v. Huff, 296 S.W. 121; State v. Duncan, 296 S.W. 149; State v. Bly, 289 S.W. 558; State v. Stewart, 289 S.W. 934; State v. Buckley, 274 S.W. 74; State v. Peters, 6 S.W. (2d) 838; State v. Archer, 6 S.W. (2d) 912; State v. Eklof, 11 S.W. (2d) 1033.

Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.

(1) The court properly overruled defendant's motion to suppress the evidence. The search of the defendant's automobile and seizure of the liquor, without a search warrant but with "probable cause," was not in violation of the defendant's constitutional rights. State v. Loftis, 316 Mo. 878, 292 S.W. 29; State v. Hall, 278 S.W. 1028; State v. Pigg, 312 Mo. 212, 278 S.W. 1030; State v. Connor, 318 Mo. 592, 300 S.W. 685; State v. Owens, 302 Mo. 368, 259 S.W. 104; State v. Bailey, 8 S.W. (2d) 57; State v. Williams, 14 S.W. (2d) 434. (2) The court cannot be convicted of error in permitting Edward Myers, the then prosecuting attorney, to testify while participating in the trial of the case as prosecuting attorney. He was not interested in the case within the meaning of Sec. 742, R.S. 1919. State v. Lee, 11 S.W. (2d) 1045; State v. Nicholson, 7 S.W. (2d) 379. The prosecuting attorney is a competent witness to prove all facts or statements coming to, or within, his knowledge except confidential statements or privileged communications. 28 R.C.L. 470, sec. 57. (3) Testimony as to the admissions of the defendant at the time of and shortly after his arrest was properly admitted. State v. Hardin, 21 S.W. (2d) 761; State v. Turner, 274 S.W. 35. (4) There being sufficient evidence to take the case to the jury, defendant's peremptory instruction in the nature of a demurrer was properly refused. The admissions of the defendant, together with other facts in evidence, clearly proved the transportation. State v. Hall, 279 S.W. 107; State v. Sandoe, 289 S.W. 893.

HENWOOD, J.

The defendant and Rufus Davis were jointly charged in the Circuit Court of St. Clair County, with willfully, unlawfully and feloniously transporting "about two gallons of hootch, moonshine, corn whiskey." The defendant was tried alone, found guilty, and sentenced to imprisonment in the penitentiary for two years, in accordance with the verdict of the jury. In due course, he appealed.

The evidence adduced by the State is substantially as follows:

In the afternoon of May 23, 1928, Edward Myers, City Attorney of Appleton City, in St. Clair County, saw Davis put "some object or other" in an old Chevrolet touring car, which was parked on 4th. Street in Appleton City. Shortly thereafter, Myers talked to Davis, and observed that Davis was intoxicated. "Davis had a reputation of handling liquor and of drinking a good deal," and Myers "had a suspicion that there was whiskey there," in the car. Myers "looked into" the car, and "raised up" a cloth in the "back end," and then telephoned H.E. Kirk, the city marshal. At that time, the defendant came "up the street," and he and Davis entered the car. When Kirk arrived, the defendant and Davis were in the front seat, "ready to leave," with the defendant at the wheel. Kirk said to the defendant: "Hold on, we want you, and what you have here." Then the defendant "leaned over," and, "in a low-toned voice," said to Myers: "I will leave town right away." Kirk saw a one-gallon glass jug of liquor, and, upon removing "the cover," found two more one-gallon glass jugs of liquor, "setting between the front and rear seat, on the bottom of the car." Two of the jugs were full of liquor, and the other one contained about a pint or quart of liquor. The liquor "looked like whiskey used to look" to Kirk. Kirk saw "the liquor in the car" before he arrested the defendant. The prosecuting attorney was notified of the occurrence, and "about nine o'clock that night" the defendant was turned over to a deputy sheriff. Myers took charge of the three jugs of liquor. One was stolen from the sheriff's office prior to the trial, but the other two were produced at the trial, admitted in evidence, and exhibited before the jury. The liquor in these two jugs was "corn whiskey," according to the testimony of four witnesses, two of whom smelled it and tasted it. One of these witnesses, Louis Jackson, a deputy sheriff, said it was "very similar to that which is unlawfully manufactured." After the defendant was arrested, Myers asked him where he got the liquor, and he said "he got it from a farm up towards Kansas City." He told Kirk "he got it near Kansas City;" and that "he was going fishing." He told Charles Dingus, the mayor of Appleton City, "he got the liquor from a farm near Kansas City;" and that "he was going south, to Taberville," in St. Clair County, about ten miles from Appleton City; and that "he was traveling in a Chevrolet Car." On the day in question, John Chapel, a resident of Appleton City, saw Davis in an old Chevrolet touring car, about seven miles south of Appleton City, going north, towards Appleton City. Another man, whom Chapel did not know, was driving the car. When asked if the defendant "looked like" the man he saw in the car with Davis, Chapel said: "I don't remember."

The defendant stood on his demurrer to the evidence, and now contends that the State failed to make a case for the jury.

After a careful consideration of the evidence, we have concluded that the defendant is right in this contention. Where, as in this instance, the State relies wholly upon circumstantial evidence, "the circumstances, to warrant a conviction, must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of defendant's guilt, but must be inconsistent with...