State v. Janes

• Decision Date: 12 December 1927
• Docket Number: No. 27795.,27795.
• Citation: 1 S.W.2d 137
• Parties: THE STATE v. JOHN JANES, Appellant.
• Court: Missouri Supreme Court

1 S.W.2d 137

THE STATE v. JOHN JANES, Appellant.

No. 27795.

Supreme Court of Missouri. Division No. 2.

December 12, 1927.

Appeal from Pemiscot Circuit Court. — Hon. E.P. Dorris, Judge.

AFFIRMED.

Von Mayes and Sharon J. Pate for appellant.

(1) The State failed to make out a prima-facie case, or to prove the corpus delicti. State v. Nave, 285 S.W. 723; State v. Roten, 266 S.W. 994; State v. Bennett, 270 S.W. 295; State v. Ridge, 275 S.W. 59; State v. Rutledge, 262 S.W. 718; 16 C.J. sec. 1580, p. 772; White v. State, 18 Ga. App. 214; State v. Crabtree, 170 Mo. 642; State v. Wheaton, 221 S.W. 26; State v. Bowman, 294 Mo. 245. (2) The weakness of the evidence, the excessiveness of the punishment and the improper argument of counsel for the State all indicate that the verdict was the result of passion and prejudice or partiality and for this reason may be set aside. State v. Shackleford, 148 Mo. 493; State v. Oertel, 217 S.W. 64; State v. Hillebrand, 225 S.W. 1009; Holmes v. State, 244 S.W. 1022. (3) The defendant was not accorded a fair trial on account of the court permitting the prosecuting attorney to argue to the jury the opinion of the State's witness. State v. Pagels, 92 Mo. 300; State v. Zorn, 202 Mo. 12; State v. Banks, 10 Mo. App. 111; State v. Ferguson, 152 Mo. 92; State v. Cummings, 189 Mo. 626; State v. Spivey, 191 Mo. 87; 16 C.J. 897. (4) Witnesses for the State should not be permitted to testify to their own opinions, inferences and conclusions. State v. Pate, 268 Mo. 431.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) The evidence was sufficient to make a case for the jury. State v. Nave, 285 S.W. 723; State v. Milstead, 285 S.W. 429; State v. Helpley, 279 S.W. 701; State v. Vesper, 289 S.W. 862; State v. Henke, 285 S.W. 392; State v. Bishop, 296 S.W. 147. (2) The verdict is not the result of passion and prejudice. State v. Alexander, 285 S.W. 985; State v. Helpley, 279 S.W. 701; State v. Renfro, 279 S.W. 702; State v. Ellis, 290 Mo. 228. (3) Since the remarks of counsel for the State objected to by the defendant are not set out in the bill of exceptions they are not here for review. State v. Lloyd, 263 S.W. 212, 214; State v. Smith, 256 S.W. 1025, 1027; State v. Sadowski, 256 S.W. 755. Furthermore, the assignment in the motion for new trial, stating that the court erred in permitting the prosecuting attorney to argue evidence stricken out by the court, is not specific enough to bring anything before this court for review. State v. Standifer, 289 S.W. 856; State v. Murrell, 289 S.W. 859, State v. Vesper, 289 S.W. 862; Laws 1925, sec. 4079, p. 198. This court will not reverse a case because of improper remarks made by counsel for the State unless it appears that such remarks influenced the verdict of the jury. State v. Tracy, 294 Mo. 372; State v. Williams, 274 S.W. 427. (4) Those assignments in defendant's motion for new trial not considered in his brief are treated as having been abandoned. State v. Murrell, 289 S.W. 859; State v. Kelley, 284 S.W. 801; State v. Bishop, 296 S.W. 147.

HENWOOD, C.

By an information filed in the Circuit Court of Pemiscot County, appellant was charged with the unlawful transportation of intoxicating liquors in a mortgaged automobile without the written consent of the legal owner of the mortgage. At the trial the jury found him guilty and assessed his punishment at imprisonment in the penitentiary for a term of four years. He was sentenced accordingly and appealed.

The evidence offered by the State showed that at the time in question Scott Carey lived in the loop of the old and new levees, about 150 yards west of the Mississippi River and about one mile north of the corporate limits of Caruthersville, Missouri, in Pemiscot County, and that he was deputy constable of that township. In his testimony for the State, Carey said that on or about the date charged in the information (April 8, 1925) he saw appellant driving a Buick roadster over the levee crossing about 300 yards south of his place and that appellant continued to drive the car about eighty or ninety yards towards his place, where it was stopped. "There was a boy by the name of Smith" in the car driven by appellant. Immediately behind the Buick roadster, a Ford coupe came over the levee and drove up to the east side of the Buick and stopped. Carey observed the occupants of these two cars moving back and forth between the same, apparently carrying something, and concluded to investigate the matter. Upon reaching the point where the cars stopped he found a third man there whom he recognized as Ray Edwards. Carey's own story as to what happened is as follows:

"Well, I was making garden out north of the house and two cars had just come through my place, and I heard another car crossing at the levee; I looked down and saw a big roadster come over and cross the levee and stop just outside of my gate and immediately behind it; there was a Ford coupe come over the levee and it drove up on the east side of the Buick and stopped. I saw some fellows going back from one car to the other and it looked to me like they were carrying something; I decided I would go down and see what they were doing and who they were.

"I got in my car and drove down there and I could see them, back and forth, carrying something, from one car to the other, and when I drove down and stopped, they had closed the cars down and locked them. I said, `What are you fellows doing here?'. Nobody answered me at all. Edwards had three locks on his car, he was closing the last one then, and I told him to open his car, I wanted to look in it and he said I couldn't do it without a search warrant, I asked him `why?' and he said, `The law was I had to have a search warrant to search a man's car.' I told him I didn't have to have any search warrant to arrest him, and I arrested all three and put them in the Buick and brought them to town and got a search warrant and opened the cars."

After the search warrant was procured, appellant gave the officers his keys, and two five-gallon cans of alcohol and about two gallons and a half of whiskey were found in the Buick roadster.

On cross-examination, this witness was further interrogated as follows:

"Q. At the time you saw the cars moving before they stopped, you don't know whether both cars had whiskey in them or whether only one had whiskey in it? A. Sure, I don't.

"Q. Do you know whether either car at the time you saw them in motion had intoxicating liquor in them? A. Bound to have, no where else to have got it.

"Q. I am asking if you know? A. Yes, I know.

"Q. How do you know? A. I know they didn't put it in there after they stopped.

"Q. Were you looking at them? A. Yes, I was looking at the whole transaction from the time they came over the levee.

"Q. Did you look at them continuously when you first saw them or look off? A. I wasn't watching them all the time, but wasn't but a few minutes after they stopped until I went down there; I do say I had my eyes on them from the time they stopped until I got there."

The sheriff of the county (J.H. Smith) testified that he assisted in the search, and that two five-gallon cans of alcohol and two and a half gallons of whiskey were found in the "back part" of the Buick roadster, after he unlocked and raised the cover over this part of the car. The following is taken from the sheriff's testimony as to his conversation with appellant:

"Q. Did you hear him make any statement on that day with reference to this liquor being in his car? A. Well, he wanted to call his bondsmen and I told him to wait, we were getting a search warrant and I told him if there wasn't any whiskey in there he wouldn't need no bondsmen.

"Q. Then what did he say? A. Well, I don't ____ he said go ahead and call them, I believe; I don't know whether he answered me."

J.S. Wahl was produced as a witness by the State and said he held a mortgage on the Buick roadster and that appellant still owed him $800 and accrued interest on the debt which the mortgage was given to secure. He further said that he had not given appellant his written consent or his consent in any form to transport intoxicating liquor in the car.

At the close of the State's case, the appellant offered a demurrer to the evidence, which was overruled. Being content to stand on his demurrer, he offered no evidence in his own behalf.

I. The only serious question presented on the record before us is the sufficiency of the evidence. Learned counsel for appellant earnestly contend that there is no substantial evidence to support the finding of the jury on the main issue of transportation. After a very careful Inference from consideration of all of the facts and Circumstances. circumstances developed at the trial, we find ourselves unable to agree with counsel in this contention.

It was clearly established by the proof made that ten gallons of alcohol and 2½ gallons of whiskey were in the Buick roadster at the time of the arrest. Appellant had driven the Buick across the levee on some kind of a mission just a few minutes before his arrest. While the presumption of the continued existence of a proven fact does not run backward, yet, the surrounding circumstances may be such as to justify the inference that an established fact must have existed at a certain time in the immediate past. [22 C.J. 92.] There...