State v. Harlow

• Decision Date: 25 March 1931
• Docket Number: 30626
• Citation: 37 S.W.2d 419,327 Mo. 231
• Parties: The State v. W. E. Harlow, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 419

327 Mo. 231

The State v. W. E. Harlow, Appellant

No. 30626

Supreme Court of Missouri

March 25, 1931

Appeal from Bates Circuit Court; Hon. W. L. P. Burney Judge.

Affirmed.

Howell H. Heck for appellant.

(1) The court erred in not suppressing the evidence for the following reasons: (a) The car was not suspicious; (b) Liquor was not in sight; (c) Defendants were sober and no smell of liquor emanated from the car or breath; (d) The "tip" did not identify defendants; (e) Any Ford would have answered the "tip" the officers received; (f) There was no search warrant; (g) There was a search, then an arrest; (h) There should have been an arrest if the officers thought that the law was being violated or defendants should have been held until a search warrant could have been obtained; (i) The search was violative of Section 11, Article 2, of Missouri Constitution. State v. Owens, 302 Mo. 348; State v. Lock, 302 Mo. 400; State v. Hall, 312 Mo. 425; State v. Williams, 14 S.W.2d 434. (2) The court instructed on the meaning of "hootch moonshine, corn whiskey" when there was no proof that the liquid introduced was either. It is elemental that facts must be before the court before an instruction can be given. (3) The demurrer, at the close of the evidence, should have been given for the following reasons: (a) There is no evidence that the liquid was "hootch, moonshine, corn whiskey;" (b) Absent such proof a conviction for transportation cannot stand; (c) The State must prove conscious possession. State v. Gatlin, 267 S.W. 797; State v. Kroeger, 13 S.W.2d 1067; State v Kurtz, 317 Mo. 380; State v. Bennett, 18 S.W.2d 52. (4) The information, being a pleading, should not be read to the jury, and then the jury instructed to disregard it. Sec. 4025, R. S. 1919. (5) The verdict of the jury was the result of passion and prejudice. (6) The State failed to show either defendant was in control of the car. State v. Peters, 6 S.W.2d 838. (7) None of the officers called the liquid corn whiskey, and there is no proof that it was unlawfully manufactured; hence a conviction for transportation is error. State v. Kroeger, 13 S.W.2d 1067; State v. Corp, 22 S.W.2d 774. (8) The court failed to instruct on good character. R. S. 1919, sec. 4025. (9) The main instruction failed to require the jury to find that the transportation was done feloniously. State v. Corp, 22 S.W.2d 776.

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

(1) The motion to suppress was properly overruled. The officer had probable cause to suspect that the car was carrying liquor. The wife of the defendant was in an intoxicated condition. Probable cause consists in a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty. State v. Pigg, 278 S.W. 1032; State v. Loftis, 292 S.W. 29; State v. Howard, 23 S.W.2d 13; State v. Williams, 14 S.W.2d 435. (2) The officers had reason to believe a felony was being committed and therefore had a perfect right to search defendant's car. State v. Harris, 22 S.W.2d 1051; State v. Williams, 14 S.W.2d 435; State v. Bailey, 8 S.W.2d 59. The liquor seized was identified by several witnesses as corn whiskey and moonshine. (3) The demurrer was properly overruled. There was ample evidence that the liquor seized was moonshine. The weight of this evidence was for the consideration of the jury. State v. Baumann, 1 S.W.2d 156; State v. Zoller, 1 S.W.2d 142; State v. Pinkard, 300 S.W. 751; State v. Jackson, 283 Mo. 24; State v. Concelia, 250 Mo. 424. (4) The jury was not instructed to disregard the information. The court gave the usual stock instruction relative to the information by telling the jury that the information was a mere formal charge and was no evidence whatever of the defendant's guilt. (5) There is nothing whatever in the record to prove that the verdict is a result of passion and prejudice. State v. Sheeler, 7 S.W.2d 343. (6) Deputy Sheriff Bert Bradley testified that Harlow had admitted ownership of the car to him. It was then a matter for the jury to pass upon. State v. Miller, 12 S.W.2d 41. (7) The whiskey was sufficiently identified as moonshine, this is sufficient to send the case to the jury. State v. Cook, 3 S.W.2d 367; State v. Griffith, 279 S.W. 138. (8) The defendant was not entitled to a character instruction because his character had not been placed in issue by the State. The only testimony offered regarding his reputation was by the defendant as to his truth and veracity. The testimony was favorable to defendant, but should not have been admitted. The defendant has no right to offer evidence as to his truthfulness and veracity until it is attacked by the State, and this was never done. State v. Marshall, 297 S.W. 68; State v. Fogg, 206 Mo. 716; State v. Beckner, 194 Mo. 292.

OPINION

Henwood, J.

W. E. Harlow and R. E. Ferrell were jointly charged, in the Circuit Court of Bates County, with unlawfully, willfully, and feloniously transporting "hootch, moonshine, corn whiskey." They were tried jointly and found guilty, and the jury assessed Harlow's punishment at imprisonment in the penitentiary for five years, and assessed Ferrell's punishment at imprisonment in the county jail for three months and a fine of $ 500. Judgment and sentence followed, in accordance with the verdict, and Harlow appealed. Ferrell did not appeal.

The evidence adduced by the State is, in substance, as follows:

In the month of January, 1929, and for about two years prior thereto, Mike Ioup operated a gasoline filling station and a lunch room on State Highway No. 71, about one mile south of the town of Rich Hill, in Bates County. In the early part of January, 1929, Mike informed Sheriff Hartley of Bates County that two men, a tall man and a short man, had been transporting and "peddling" whisky in that vicinity; that these men had used different cars in transporting whisky, sometimes a Chevrolet car, and the last two or three times a new Ford car; that, on some of these trips, the tall man was accompanied by a woman and not by the short man; and that, on one occasion, the tall man and short man came into his lunch room and ordered some sandwiches, and, while he was preparing the sandwiches, stole two watches from his "punch board." Mike also told the sheriff that he wanted to "get even" with them because they stole his watches, and asked the sheriff to "lay" for them and "get them" with a load of whisky. The sheriff suggested that Mike order some whisky from these men and notify him as to when it would be delivered. Mike ordered five gallons of whisky, "of the corn brand," and notified the sheriff, "the night before," that these men would "come through" in a new Ford car, with a load of whisky, about eight o'clock in the evening of the next day. Between seven and eight o'clock in the evening of the next day, January 18, 1929, the sheriff and two deputies, Bradley and Oberwether, went to Mike's premises and, after stationing themselves at different points outside of the lunch room, awaited the arrival of the new Ford car and the men described by Mike. About nine or 9:30 o'clock that evening, a new Ford coupe approached the lunch room from the south on State Highway No. 71, and stopped near the lunch room. Immediately a tall man got out of the Ford coupe and entered the lunch room, leaving a short man and a woman in the car. The tall man was Harlow, the short man was Ferrell, and the woman was Harlow's wife. Oberwether testified that he followed Harlow into the lunch room and arrested him before the car was searched. The sheriff and Bradley testified that Harlow, Ferrell and Mrs. Harlow were arrested after the car was searched. As the sheriff and Oberwether approached the car, Bradley was "assisting" Ferrell and Mrs. Harlow out of the car, and all three of the officers observed that Mrs. Harlow was intoxicated, "very drunk." After Ferrell and Mrs. Harlow got out of the car, Bradley took a bunch of keys out of the "dash board," and used one of the keys to unlock a compartment in the rear part of the car. In this compartment Bradley and Oberwether found thirteen gallons of liquor, in two five-gallon jugs and three one-gallon jugs. The jugs were enclosed in gunny sacks. They removed the liquor from the car and turned it over to the sheriff. One of the jugs was produced at the trial and admitted in evidence, and the liquor contained therein was "inspected and smelled by the jury." The sheriff and Bradley testified that the liquor in this jug was "moonshine," and Oberwether testified that it was "corn whisky." All three said they smelled it, but did not taste it. At the time the Ford coupe was searched, Harlow told the officers that it belonged to him, but later told them that it belonged to "a lady friend of his in Kansas City." The sheriff testified that, about a week or ten days after the seizure of the liquor, Harlow "said he would make it right with me if I would let him change this liquor; he said he would take the liquor out and put vinegar in;" and that he told Harlow "nothing doing."

Harlow testified: At the time in question, he was thirty-two years of age, and lived in Kansas City, Missouri, where he was employed as a cab driver. He was previously employed for six years as a police officer in Kansas City. The new Ford coupe belonged to Mrs. Doris Henderson, a restaurant keeper in Kansas City. He and his wife and Ferrell were taking a ride in this car in the afternoon of January 18, 1929, and he decided to drive "to Mike's to buy some whisky." They stopped there about four o'clock that afternoon, and bought some sandwiches and "two half pints" Then, he drove on south to Nevada, and, when he...