State v. Jones, No. 25600

CourtMissouri Supreme Court
Writing for the CourtHigbee
Citation268 S.W. 83
PartiesSTATE v. JONES
Decision Date31 December 1924
Docket NumberNo. 25600
268 S.W. 83
STATE
v.
JONES
No. 25600
Supreme Court of Missouri, Division No. 2.
December 31, 1924.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Louis Jones was convicted of driving an automobile while intoxicated, and he appeals. Reversed and remanded.

S. J. Smalley, of Portageville, for appellant.

Jesse W. Barrett, Atty. Gen., and William L. Vanderventer, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.


The defendant was convicted of driving an automobile while in an intoxicated condition, and appealed.

The information was filed by J. M. Mansengill,

268 S.W. 84

prosecuting attorney, on March 12, 1923. It charges that the defendant, on November 12, 1922, at the county of New Madrid, he being then and there in an intoxicated condition, did unlawfully and feloniously operate, drive, and run a certain Ford motor vehicle on Powell avenue in the city of New Madrid, endangering the life, limb, and property of other persons, against the peace and dignity of the state. The cause was tried to a jury, and a verdict of guilty returned, assessing the punishment at a term of 2 years in the penitentiary. We quote from the statement by the Assistant Attorney General:

"The evidence on the part of the state tended to show that on the 12th day of November, 1922, the appellant was driving a Ford car north on Powell avenue in the city of New Madrid. The prosecuting witness, J. S. Massengill, who was also the prosecuting attorney of New Madrid county, was driving south on the same street in an 8-cylinder Oldsmobile at the rate of about three or four miles per hour. The prosecuting witness was on the right side of the street going south. Appellant was on the west side of the street going north, and was driving his car at an excessive rate of speed. When he got even with the prosecuting witness he turned to the left and ran squarely into the left side of the Oldsmobile, doing it considerable damage.

"There was considerable evidence that appellant was in an intoxicated condition, based upon his breath smelling of whisky, and his 'general deportment being that of an intoxicated person. After the collision appellant offered to pay the prosecuting witness for the damage that he had done, which offer was refused. There were three other persons in the car with him at the time, and state's evidence showed that they immediately left the scene of the collision. The testimony seems to show that two informations had been filed against the appellant, the one in question here, and another for reckless driving which was still pending in the circuit court of New Madrid county. * * *

"Appellant's testimony was that he was going north on Powell avenue and saw the prosecuting witness coming south on the wrong side of the street at a distance approximately 150 feet away; that the prosecuting witness acted like he intended to turn east, but instead of" doing so turned his car abruptly toward the west, and was run into by the car of the appellant causing injury to each of the cars; that he was only running about 12 or 15 miles an hour, and applied his brakes as quickly as possible, but was unable to avoid the accident because of the negligence of the prosecuting witness; that he was not intoxicated, nor had he been drinking intoxicating liquor at all, but that the accident was wholly the fault of the prosecuting witness by being on the wrong side of the street and by turning directly across Powell avenue in front of appellant."

The appellant's testimony as to the circumstances of the collision of the two automobiles and that he was not intoxicated was corroborated by several witnesses. It was a close case on the facts.

The defendant was 19 years of age at the time of the trial. He lived with his widowed mother three miles east of New Madrid. After breakfast on Sunday morning, November 12, 1922, the defendant, in company with Enoch Floyd and Carl Akers (who were visitors of the family) and another boy, drove to New Madrid to get some bread and meat for dinner. They had been driving about town an hour or more when the collision occurred.

Mr. Massengill, the prosecuting attorney, was the principal witness for the state. On cross-examination he was asked:

"Q. He (the defendant) was sober enough to talk? A. Yes, sir.

"Q. You are not very well acquainted with. him? A. I have been in court with him here twice and convicted him, I believe."

On motion this was stricken out.

George Traylor, a witness for the state, on cross-examination, testified:

"A. Well, I have seen several fellows drunk, and I have seen him (defendant) drunk several times."

A motion to strike out this answer was overruled

Rebel Imboden, a witness for the state, testified:

"I saw the defendant about 8:30 o'clock on that Sunday morning in his car. Saw defendant afterwards riding in his car. I saw him crowd Mose Lilly over on the curbing; if Mose hadn't got right up on the curb he would have hit him."

An objection to this evidence was overruled. Continuing, the witness testified:

"There were some boys in the car with Jones. I got a paper and was going down to Doctor McKinney, and they passed me right here. I heard one of the boys; I don't know whether it was Jones or not; I heard him say, `Get out of the road, you big s ____ o_____ b_____, or I will run over you; that was to Mose Lilly "

A motion to strike this answer, and to direct the jury to disregard it was overruled. Enoch Floyd, a witness for the defendant and in the car at the time of the collision, was asked on cross-examination:

"Q. Why wasn't you drunk on this occasion? A. Because I wasn't.

"Q. You had plenty of opportunity out at Jones', didn't you? (Objection overruled.) A. No, sir.

"Q. Jones has whisky at his home? (Objection to this was overruled.) A. Never saw any out there.

"Q. They don't make it out there? A. No. (Objection made.)

"By the Court: He said, `No'

"Q. Were you ever out there when they had a still in operation? A. No." Objection

268 S.W. 85

being made, the court said: "No; there wasn't any proof, and he said he didn't know anything about it."

Carl Akers, a witness for the defendant, was asked on cross-examination:

"Q. What was you coming up here for? A. Why do people go visiting?

"Q. I think I know; they bad whisky out at Jones'. (An objection to this was overruled.) A. No; there was not.

"By Mr. Smalley: You know so much about a still, why don't you charge him with it?

"Mr. Gallivan (Special Counsel for the State): He was charged with it and convicted.

"Mr. Smalley: I ask that counsel be rebuked and reprimanded for making that statement, and I except to the court in refusing to reprimand counsel."

There was no ruling or response by the court.

In the cross-examination by the state of Mrs. Mary Jones, mother of and witness for defendant:

"Q. Did this happen before or after the still was found at your place? A. Wasn't no still found in my place." An objection being interposed, the court said: "She's already answered."

The defendant testified that he had not been drinking, and was not drunk, and that the collision occurred because Massengill abruptly turned his car east in front of defendant's car, and he was unable to avoid the collision. One of the witnesses for the state testified that he did not think the defendant was drunk; that he did not act like he was drunk; "Maybe dazed from the jolt of that wheel where he hit his wheel."

Instructions 1 and 5 for the state, are as follows:

"(1) The court instructs the jury that if you find and believe from the evidence in this case, beyond a reasonable doubt, that at the county of New Madrid and state of Missouri, on or about the 12th day of November, 1922, or at any time since the 2d day of November, 1921, the defendant, Louis Jones, being then and there in an intoxicated condition, did unlawfully and feloniously operate, drive, and run a certain Ford motor vehicle on Powell avenue in the city of New Madrid, you will find the defendant guilty as charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of not more than 5 years nor less than 2 years, or by imprisonment in the county jail for a term not exceeding 1 year, or...

To continue reading

Request your trial
45 practice notes
  • Farber v. Douglas, No. 16886
    • United States
    • Supreme Court of West Virginia
    • 18 Dicembre 1985
    ...v. , 90 Colo. 440, 9 P.2d 611 (1932); In re Guardianship of Angell, 26 Ill.App.2d 239, 167 N.E.2d 711 (1960); State v. Jones, 306 Mo. 437, 268 S.W. 83, 85-86 (1924); In re Truder, 37 N.M. 69, 17 P.2d 951 (1932); People v. Krstovich, 72 Misc.2d 90, 338 N.Y.S.2d 132 (Greene County Ct.1972); I......
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • 12 Novembre 1957
    ...jury an attorney appointed as his assistant by the court, under what is now section 341.7, may also do so. State v. Jones, 360 Mo. 437, 268 S.W. 83, 85, recognizes the inherent power of the court, independent of statute, to appoint[249 Iowa 544] a special prosecuting attorney when the regul......
  • People v. Superior Court (Greer), S.F. 23505
    • United States
    • United States State Supreme Court (California)
    • 30 Marzo 1977
    ...discussion at fn. 8, Post; see also Corbin v. Broadman (1967) supra, 6 Ariz.App. 436, 433 P.2d 289; State v. Jones (1924) 306 Mo. 437, 268 S.W. 83; Annot., 31 A.L.R.3d 953, 984--986.) Thus, if the trial court determines that a district attorney's participation in the filing of a criminal co......
  • State v. Spinks, No. 36208.
    • United States
    • United States State Supreme Court of Missouri
    • 21 Febbraio 1939
    ...v. White, 99 S.W. (2d) 75, 339 Mo. 1019; State v. Nicholson, 7 S.W. (2d) 379; State v. Huff, 61 S.W. 909, 161 Mo. 459; State v. Jones, 268 S.W. 83, 306 Mo. 437; State v. Edmundson, 218 S.W. 864; State v. Wilkins, 100 S.W. (2d) 895. (5) The court erroneously allowed witness Judge Ray G. Cowa......
  • Request a trial to view additional results
45 cases
  • Farber v. Douglas, No. 16886
    • United States
    • Supreme Court of West Virginia
    • 18 Dicembre 1985
    ...v. , 90 Colo. 440, 9 P.2d 611 (1932); In re Guardianship of Angell, 26 Ill.App.2d 239, 167 N.E.2d 711 (1960); State v. Jones, 306 Mo. 437, 268 S.W. 83, 85-86 (1924); In re Truder, 37 N.M. 69, 17 P.2d 951 (1932); People v. Krstovich, 72 Misc.2d 90, 338 N.Y.S.2d 132 (Greene County Ct.1972); I......
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • 12 Novembre 1957
    ...jury an attorney appointed as his assistant by the court, under what is now section 341.7, may also do so. State v. Jones, 360 Mo. 437, 268 S.W. 83, 85, recognizes the inherent power of the court, independent of statute, to appoint[249 Iowa 544] a special prosecuting attorney when the regul......
  • People v. Superior Court (Greer), S.F. 23505
    • United States
    • United States State Supreme Court (California)
    • 30 Marzo 1977
    ...discussion at fn. 8, Post; see also Corbin v. Broadman (1967) supra, 6 Ariz.App. 436, 433 P.2d 289; State v. Jones (1924) 306 Mo. 437, 268 S.W. 83; Annot., 31 A.L.R.3d 953, 984--986.) Thus, if the trial court determines that a district attorney's participation in the filing of a criminal co......
  • State v. Spinks, No. 36208.
    • United States
    • United States State Supreme Court of Missouri
    • 21 Febbraio 1939
    ...v. White, 99 S.W. (2d) 75, 339 Mo. 1019; State v. Nicholson, 7 S.W. (2d) 379; State v. Huff, 61 S.W. 909, 161 Mo. 459; State v. Jones, 268 S.W. 83, 306 Mo. 437; State v. Edmundson, 218 S.W. 864; State v. Wilkins, 100 S.W. (2d) 895. (5) The court erroneously allowed witness Judge Ray G. Cowa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT