State v. Howard

• Decision Date: 29 November 1926
• Docket Number: 28298
• Citation: 162 La. 719,111 So. 72
• Court: Louisiana Supreme Court
• Parties: STATE v. HOWARD et al

111 So. 72

162 La. 719

STATE v. HOWARD et al

No. 28298

Supreme Court of Louisiana

November 29, 1926

Rehearing Denied January 3, 1927.

Appeal from Third Judicial District Court, Parish of Lincoln; S.D Pearce, Judge. Ed Howard was convicted, and W. A. Russell pleaded guilty of transporting intoxicating liquor for beverage purposes, and defendant Howard appeals.

Affirmed.

Barksdale Warren & McBride, of Ruston for appellant.

Percy Saint, Atty. Gen., Percy T. Ogden, Asst. Atty. Gen., Wm. J Hammon, Dist. Atty., of Jonesboro (E. R. Schowalter, Asst. Atty. Gen., of counsel), for the State.

LAND J. O'NIELL, C.J. and BRUNOT and THOMPSON, JJ., dissent and O'NIELL, C.J., hands down reasons.

OPINION

LAND, J.

The defendant Howard is jointly indicted with W. A. Russell for the transportation of intoxicating liquor for beverages purposes.

Russell pleaded guilty and was duly sentenced. Howard, after plea of not guilty, was tried and convicted.

On appeal, the defendant complains of the refusal of the trial judge to be governed by two special charges, which it is contended are applicable to be facts of the case.

The court was asked to charge itself:

"(1) That if Howard had no knowledge of the whisky being in the back end of the coupe, as the facts seemed to indicate, it is the court's duty to find the defendant not guilty.

"(2) In order for the defendant to be found guilty there must be some evidence going to show that the defendant had actual knowledge of the presence of the liquor in this third person's car which he was driving."

The bill reserved contains the testimony of the sheriff of Lincoln parish, of the defendant Howard, and of his codefendant, Russell.

In his testimony, Russell exonerates Howard of all guilt in connection with the transportation of the liquor, consisting of from 60 to 75 quarts of whisky.

Russell states that he brought the liquor from New Orleans in his car, and was transporting it to El Dorado, Ark.; that he met Howard, for the first time, while crossing the Mississippi river in a ferry boat at Natchez; that Howard was on his way to Smackover, Ark., and, at his request, was allowed to ride in the car. Russell declares that Howard knew nothing of the presence of the liquor in the car, which was overturned in an accident near Ruston, while Howard was driving it; both of the occupants of the car being injured.

Howard testifies that he had never known Russell prior to their meeting on the ferry boat; that he was on his way to Smackover, in search of work, and, at Howard's request, Russell agreed to give him a ride.

Howard denied any knowledge of, or connection with, the liquor in the car. Russell accounts for Howard's driving the car by the statement that he, Russell, was worn out by an all night drive from New Orleans, and requested Howard to relieve him.

The sheriff testifies that he was called to investigate an automobile accident near Ruston; that he went to the scene and there found 60 to 75 quarts of whisky in the back end of a Chevrolet coupe; that, upon being informed that the occupants of the car had been injured in the accident, and had gone to a doctor's office in Ruston, he went to the office of the doctor and arrested the defendants; that the arrest was made about an hour after the accident, and that he, the sheriff neither saw nor observed anything to indicate that either of the men arrested had been drinking; that Russell had told him in the presence of Howard that Howard was driving the driving the car at the time of the accident; and that Howard made no denial of Russell's statement. The state offered no other evidence.

However, the trial judge, in our opinion emasculated the bill by the following statement in his per curiam:

"Taking into consideration all of the facts and circumstances testified to by the two accused parties, in connection with the testimony of the sheriff of Lincoln parish, the court believes and is convinced that defendant Howard did know that there was whisky in the car he was driving when the car was wrecked; and the court believes that both of the accused parties testified falsely when they testified that Howard knew nothing about there being whisky in the car. The Court believes that both of the accused parties are rum runners, and were engaged in that undertaking when their car was wrecked in Lincoln parish, and was found to contain a large quantity of intoxicating liquor. Defendant Howard had driven the car from Rayville to Choudraut, a distance of 50 or more miles, and had ridden in the car with Russell from Natchez, Miss. But even if Howard did not have actual knowledge that the car contained a cargo of liquor, as claimed by him, the burden of proof of that facts rests upon him. The testimony did not convince the court that he did not know it. On the contrary, the evidence all taken together convinces the court that he did know it. In its refusal to give the second special charge, requested, the court is guided by what it deems to be the jurisprudence of the Supreme Court of the state in such cases. He is presumed to know what he was doing and to have intended to do what he was doing, viz. transporting intoxicating liquor. See State v. Dowdell, 106 La. 645, 31 So. 151; State v. Cain, 106 La. 708, 31 So. 300; State v. Quinn, 131 La. 490, 495, 59 So. 913.

"The court repeats that the taking the evidence all together and weighing it fairly and impartially, it is sufficient to justify the conviction of defendant Ed Howard. Furthermore, the offense charged is a misdemeanor, and the act of one of the parties participating in it is the act of all."

On the trial of misdemeanors, a district judge discharges dual functions, and is not only the exclusive judge of the law, but also the exclusive judge of the facts, the weight and sufficiency of the evidence, and the credibility of the witness. State v. Whittaker, 152 La. 639, 94 So. 144.

The trial judge has declared in his per curiam that, in his opinion, the defendant Howard and his codefendant, Russell, swore falsely in stating that Howard was ignorant of the fact that there was a cargo of whisky in the car. He has passed upon the credibility of these witnesses and discredits their testimony as to Howard's want of knowledge as to the presence of liquor in the automobile which he was driving.

This court is without any authority, under its criminal appellate jurisdiction as to questions of law, to declare that it differs from the district judge, and believes that these witnesses swore truthfully, and, therefore, that it will review their testimony as undisputed facts in the case. Const. 1921, art. 7, § 10, and article 19, § 9.

In other words, there is a clear disagreement between the judge a quo and counsel for the defendant as to the facts of the case. The contention of the judge is that the evidence, as appreciated by him, shows that both defendants were confederates in a rum-running undertaking a finding of facts which necessarily includes the further finding as to the guilty knowledge or criminal intent of Howard; while counsel for defense, on the other hand, insist upon our considering the testimony of defendant and his witness, and taking the opposite view of the facts.

There can be no question in the case as to the defendant Russell being a rum-runner, as he has confessed it. It was not necessary that Howard should have left the city of New Orleans with Russell in the same car, in order to make him a confederate. He could easily have joined Russell at Natchez, Miss. It was the point reached by Russell after an all night drive, and at a time that he needed relief, as he was worn out by the long trip.

That the two men in the rum car had joined each other at a necessary and convenient point on the road is a reasonable, rather than an unreasonable, conclusion which may be drawn in the case. Howard was not picked up by Russell as a pedestrian on the highway and given a ride for a short distance. He was to accompany Russell from Natchez, the meeting point, to El Dorado, the destination of the rum car.

Howard was in the car with Russell all the way from Natchez, Miss., and had driven the car 50 miles or more, from Rayville to Choudraut, when the accident occurred. It is not disputed that the car contained a large quantity of liquor, which was to be sold at El Dorado.

It cannot be contended, therefore, that the refusal of the trial judge to accept the testimony of Howard and Russell in this case as true was merely arbitrary action upon his part, and wholly unjustified by the facts and circumstances of the case. He had a right to consider the interest of Howard and his codefendant in testifying in the case, and his conclusion is that their testimony is a "frame-up." There is some evidence to connect Howard with Russell in the transportation of the liquor. Whether such evidence will satisfy all judicial minds of guilt beyond a reasonable doubt presents merely a question as to its sufficiency.

It is well settled that the Supreme Court will not review the sufficiency of the evidence, if there was any evidence at all of a fact essential to conviction. State v. Tyler, 150 La. 131, 90 So. 538.

There is a vast difference between evidence and proof. The one convinces, while the other may be false, and of no probative value whatever.

The intent to sell intoxicating liquor may be deduced either from direct or circumstantial evidence. State v. Prophet, 157 La. 550, 102 So. 666; State v. Davis, 160 La. 548, 107 So. 402.

Guilty knowledge or wrongful intent, as to the transportation of intoxicating liquor for beverage purposes, may be established from all the facts and circumstances of the case, although such knowledge is denied by a defendant, and although there is no direct...