State v. Harris

• Decision Date: 11 December 1929
• Docket Number: 29536
• Citation: 22 S.W.2d 1050,324 Mo. 139
• Parties: The State v. N. W. Harris, Appellant
• Court: Missouri Supreme Court

22 S.W.2d 1050

324 Mo. 139

The State v. N. W. Harris, Appellant

No. 29536

Supreme Court of Missouri

December 11, 1929

Appeal from Marion Circuit Court; Hon. Charles T. Hays Judge.

Affirmed.

E W. Nelson and J. H. Whitecotton for appellant.

(1) The officer must have such information as will create in his mind a reasonable suspicion that the defendant was committing a felony, and as the officer in this case had no such information, as shown by the testimony, the motion to suppress should have been sustained. State v. Evans, 161 Mo. 95; State v. Cushenberry, 157 Mo. 168; State v. Bailey, 8 S.W.2d 57. (2) When testimony can be had by competent experts the testimony of non-expert witnesses should not be admitted. State v. Farley, 144 Mo. 600; 7 Am. & Eng. Ency. Law 493. (3) The error committed by the court in permitting witnesses to testify as to rumors concerning the defendant was not cured by the court instructing the jury that the testimony by the witness as to rumors is expressly held to be improper and wholly incompetent for any purpose whatever. The admission of testimony on cross-examination of the defendant's character witnesses was extremely prejudicial and in direct violation of the law. State v. Seay, 282 Mo. 672. (4) The court should have given the instructions directing the jury to find the defendant not guilty, there being no substantial and competent testimony tending to show that the jugs contained "hootch," "moonshine" "corn whiskey." (5) Instruction marked "A" should under all the evidence not have been given. It should have included knowledge of the contents of the jugs or containers. It is further defective and erroneous in using the terms "hootch" or "moonshine," thereby making the instruction broader than the information, said terms not being synonymous when not used as set out and used in the statute, "hootch moonshine, corn whiskey." (6) The giving of the instruction marked "B" by the court is manifest error, as it warrants the conviction of the defendant of a felony if the liquor was intoxicating liquor, containing one-half of one per cent or more of alcohol, by volume, and capable of being used for beverage purposes. State v. Brown, 262 S.W. 710; State v. Brown, 285 S.W. 995; State v. Caldwell, 312 Mo. 140. (7) The court should have given Instruction 3 as asked by the defendant. This instruction properly submitted the issue and offense charged in the information. This instruction is based on the information and properly declared the law. State v. Sessom, 278 S.W. 704; State v. Gotlin, 267 S.W. 797. (8) Instruction 5 asked by the defendant should have been given. It was refused by the court for the reason it was sufficiently covered by an instruction given at the request of the State. (9) Instruction 6, as asked by the defendant, is the converse of what should have been given on the part of the State and is a proper and necessary instruction on behalf of the defendant. State v. Gotlin, 267 S.W. 797.

Stratton Shartel, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The appellant alleges that the court erred in refusing to give an instruction in the nature of a demurrer at the close of all the evidence. There was substantial evidence to the effect that the defendant is guilty of the crime charged in the information. State v. Scheufler, 285 S.W. 421. (2) The appellant complains that the court erred in overruling defendant's motion to suppress certain evidence. It is claimed that the officer had no right to arrest the defendant without a warrant; that he had no right to take possession of the intoxicating liquor without a search warrant. He had the right without a warrant to arrest the defendant and take charge of the liquor. State v. Padgett, 289 S.W. 956. The officer had the right to rely on his sense of smell in making the arrest. State v. Rhodes, 292 S.W. 79. The court did not commit error in overruling defendant's motion to suppress evidence. State v. Bailey, 8 S.W.2d 57. (3) It has always been held that in testifying about intoxicating liquor, witnesses may be experts either by chemical education or by experience. State v. Kroeger, 13 S.W.2d 1071; 33 C. J. 773; State v. Bliss, 18 S.W.2d 510. (4) Appellant charges that the court erred in permitting the prosecuting attorney to cross-examine character witnesses of defendant by asking them if they had heard certain things charged against the defendant. The cross-examination was a proper one. (5) Appellant's objections to the instructions seem to be that because the information charges that defendant transported "hootch, moonshine, corn whiskey" and the instructions refer only to "hootch" or "moonshine," a fatal error has been committed. Under this information proof may be made that the defendant transported "hootch," "moonshine" or "corn whiskey." It is not necessary, in order to make a case, to prove the transportation of "hootch," "moonshine" and "corn whiskey." State v. Pinto, 279 S.W. 147. It is therefore proper for the instruction to be limited to "hootch" or "moonshine." State v. Wood, 11 S.W.2d 1042. (6) Appellant contends that because of this Instruction B the jury was authorized to convict upon proof that appellant transported any kind of intoxicating liquor other than "hootch moonshine." This instruction is, of course, to be construed with instruction A. State v. Arnett, 210 S.W. 83. Instruction A told the jury to convict if they found from the evidence that the defendant transported "hootch" or "moonshine." Instruction B properly defines "hootch" "moonshine." State v. Wood, 11 S.W.2d 1042. (7) The definition of "transportation" is limited to "hootch" "moonshine," because the testimony shows that the defendant transported "hootch" or "moonshine."

OPINION

White, J.

The appeal is from a sentence, February 14, 1924, of two years in the penitentiary upon conviction of defendant for transporting "hootch, moonshine."

Defendant lived in Moberly, in rooms over a soft-drink parlor known as the Green Tree. On December 2, 1927, McAdam, a police officer, saw a car driven along the alley and stopped near the back door of the Green Tree. A man named Warford came out of the back door of the building, got a jug from the car and put it inside the door of the Green Tree. The officer approached the car, smelled liquor, and saw a five-gallon jug in the car. The defendant was at the wheel. He arrested the defendant, got in the car, and drove to the police station. The jug contained moonshine, which was fifty-four per cent alcohol, intoxicating, potable and fit for beverage purposes. Upon this evidence the defendant was found guilty by the jury.

I. The defendant first filed a motion to suppress the evidence on the ground that the liquor was discovered in his car by an unreasonable search; that the officer had no warrant to search or to arrest the defendant at the time.

The evidence shows without contradiction that the officer arrested the defendant and took him to the police station at the time he discovered the five-gallon jug in the car. There was no search other than an observation of the jug. The officer had reason to believe that the defendant was committing a felony. He had received information that liquor was being sold at the Green Tree. It had that reputation. He saw the car stop there and saw a jug carried in. He smelled the liquor. He therefore had reason to believe that the defendant was transporting liquor, or committing a felony, and he had a right to arrest him without a warrant, and to search him and the car as incident to such arrest. [State v. Williams, 14 S.W.2d 434; State v. Bailey, 8 S.W.2d l. c. 59, and cases cited.] The information upon which an officer may arrest one suspected of committing a felony is an entirely different thing from the probable cause, which must be shown by the issuance of a search warrant, as we have heretofore pointed out. (Id.) The motion to suppress was therefore properly overruled.

II. It is further claimed that the court erred in overruling the defendant's demurrer to the evidence at the close of the case. The evidence mentioned above was entirely sufficient to submit the issue of transportation to the jury.

III. It is further claimed by the appellant that the court erred in permitting Officer McAdam and other officers to testify that the contents of the jug found in defendant's car was moonshine. We have held consistently that a witness, qualified to judge the quality and kind of unlawful liquor, may be an expert by chemical education or by experience; that sheriffs and other officers, who have had experience in enforcing the prohibition law, may testify as to the kind of liquor which they discover. [State v. Kroeger, 13 S.W.2d l. c. 1071; State v. Bliss, 18 S.W.2d l. c. 510; 33 C. J. 773.] In this case, as an illustration, one Lawrence Daily, an officer, testified that he could distinguish moonshine whiskey from bonded whiskey by the taste and smell. He had had experience for four years in connection with prohibition enforcement.

IV. On cross-examination of defendant's character witnesses they were asked if they had heard rumors of offenses committed by the witness whose character was attacked. This was objected to and exception saved. It is...