State v. Kiely

• Decision Date: 05 November 1923
• Docket Number: No. 14823.,14823.
• Citation: 255 S.W. 343
• Parties: STATE v. KIELY.
• Court: Missouri Court of Appeals

255 S.W. 343

STATE v. KIELY.

No. 14823.

Kansas City Court of Appeals, Missouri.

November 5, 1923.

Appeal from Circuit Court, Howard County; A. W. Walker, judge.

"Not to be officially published."

John Kiely was convicted of the possession of intoxicating liquor, and he appeals. Affirmed.

Roy L. Kay, of California, Mo., for appellant.

Leon P. Embry, of California, Mo., for the State.

BLAND, J.

Defendant was convicted of having in his possession intoxicating liquor, and his punishment fixed at a fine of $250 and three months imprisonment in the county jail.

The facts show that on the night of August 31, 1921, one Martie, special policeman of the city of California, Mo., with another special policeman, was between the two Kiely buildings in said city, when they heard a crash as though some one had broken a bottle. They walked to an automobile from where the sound came, and there saw defendant run from the vicinity of the car across the street and into a restaurant. The car belonged to one Anderson. No one other than defendant was in the street. The car was near the sidewalk, and the two officers found a broken one-quart fruit jar upon the sidewalk near the car. The officers "investigated a little," and concluded that the contents of the jar that was on the sidewalk was "liquor." They then walked up to the hotel at the corner, and came back on the same street, and while they were going up and coming back defendant and a man by the name of Anderson came from across the street and started to crank the car. The officers told them "not to be in a big hurry." Martie then looked into the car, and saw a box with more jars in it similar to the one that was broken. The other officer then arrested Anderson. Martie went around in front to get the number of the car, and while he was doing this defendant took the box out of the car and ran around the building with it. Martie smelled the liquid spilled on the sidewalk. He testified, "It smelled very much like liquor." He was unable to tell whether the jars in the box contained any fluid. Two other persons who shortly afterwards smelled the fluid from the broken jar testified that the liquid was whisky; one of them testified on cross-examination, "I could tell, it was very strong; it was every plain smell; I could not tell the strength of it." The evidence also shows that defendant was drinking at the time. Defendant took the stand, but did not deny that he had the liquor in his possession; his testimony being confined to denying that he had anything to do with the absence of one of the state's witnesses.

It is insisted that the court should have given to the jury the instruction directing a verdict of acquittal asked by the defendant, because the corpus delicti was not established; that there was no evidence to show alcoholic contents by volume of the liquid or whether it was capable of being used for beverage purposes; that the evidence does not establish physical possession by defendant.

Section 6602, H. S. 1919, being a part of the statute under which defendant was indicted, defines intoxicating liquor to be—

"* * * any distilled, malt, * * * vinous, fermented or alcoholic liquor, all alcoholic liquids, whether proprietary, patented or not, which contain one-half of one per centum of alcohol by volume and which are potable or capable of being used as a beverage."

It is insisted that it was impossible for the witnesses to determine that the spilled liquid contained one-half of 1 per centum of alcohol by volume. However, the smelling of the liquid was not the only evidence of defendant's guilt. His running across the street upon the appearance of the police officers, his removing of the box containing jars similar to that broken, are other circumstances which the jury could consider in...