State v. King
| Decision Date | 28 September 1932 |
| Docket Number | No. 31765.,31765. |
| Parties | THE STATE v. H.C. KING, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Crawford Circuit Court. — Hon. J.H. Bowron, Judge.
REVERSED AND REMANDED.
Earl E. Roberts for appellant.
(1) The evidence is insufficient to sustain a conviction and the demurrer to the evidence should have been sustained. Suspicion, however strong, is not sufficient to sustain a conviction. State v. Buckley, 274 S.W. 1; State v. Hollis, 284 Mo. 627; State v. Hollis, 225 S.W. 225; State v. Bowman, 243 S.W. 1; 3 Rice Crime Evidence, p. 561; State v. Goodson, 209 Mo. 321, 252 S.W. 392; State v. Tallo, 274 S.W. 469; State v. Kurtz, 295 S.W. 747, 317 Mo. 380; State v. Ridge, 275 S.W. 59; State v. Stewart, 289 S.W. 934; State v. Mohr, 316 Mo. 204. (2) Property possessing evidentiary value obtained by government officials by means of an illegal search are not admissible in evidence against the person affected whose premises were searched. United States v. Camorto, 278 Fed. 388; State v. Owen, 259 S.W. 105; State v. Lock, 259 S.W. 116; Weeks v. United States, 232 U.S. 383. (3) The home owner who yields peaceably to the officers' demand is as much under restraint as if he forcibly resists such official interference with his rights. State v. Owen, supra; State v. Lock, supra. (4) The evidence is insufficient under the information to warrant Instruction 1 given for the State because a misdemeanor was alleged and not more than misdemeanor was proven. State v. Clark, 289 S.W. 963.
Stratton Shartel, Attorney-General, and J.K. Roach, Assistant Attorney-General, for respondent.
(1) The information is sufficient in form and substance. Laws 1923, sec. 21, p. 242; State v. Thurston, 300 S.W. 485; State v. Connor, 300 S.W. 685; State v. Talken, 292 S.W. 32; State v. Cardwell, 279 S.W. 99. (2) Sufficiency. The evidence was sufficient upon which to base the verdict of the jury. State v. Janes, 1 S.W. (2d) 137; State v. Nave, 285 S.W. 725; State v. Bailey, 8 S.W. (2d) 57; State v. Hall, 279 S.W. 103; State v. Davis, 46 S.W. (2d) 565; State v. Howard, 23 S.W. (2d) 11; State v. Bailey, 8 S.W. (2d) 57; Carroll & Kiro v. United States, 267 U.S. 132, 69 L. Ed. 543; State v. Pigg, 312 Mo. 212; State v. Thurston, 300 S.W. 485; State v. Hall, 279 S.W. 104; State v. Harris, 22 S.W. (2d) 1050. (3) There being sufficient evidence to take the case to the jury, defendant's peremptory instructions in the nature of a demurrer at the close of State's case and at the close of all the evidence in the case were properly overruled. Moreover, defendant's demurrer at the close of the State's case was abandoned by subsequent introduction of testimony on the part of the defense. Riley v. O'Kelly, 250 Mo. 660; State v. Jackson, 283 Mo. 18; State v. Starling, 207 S.W. 767; State v. Cummings. 248 Mo. 509. (4) The court did not err in giving Instruction 1. The instruction properly declares the law and is based upon ample evidence. State v. Cardwell, 279 S.W. 100; State v. Wheeler, 2 S.W. (2d) 777; State v. Pinto, 312 Mo. 99.
The appellant was convicted by a jury in the Circuit Court of Crawford County of transporting moonshine, and his punishment assessed at two years' imprisonment in the penitentiary. The principal contention made before this court is that the verdict was not supported by substantial evidence. Complaint is made also of the admission of incompetent and prejudicial evidence; and there is a further assignment that the information alleged and the proof showed only a misdemeanor, if anything, whereas the State's main instruction submitted the case as involving a felony charge and the defendant was convicted of a felony.
The defendant, King, lived on U.S. Highway 66 in Crawford County. The sheriff of the county testified he had occasion to visit the premises of the defendant about the first day of May, 1929. Being asked for what reason or purpose he went to the home of the defendant he answered: "I went there with a legal search warrant." Defendant's counsel objected and moved that the answer be stricken out. The objection was sustained and the witness continued, saying he found the defendant away from home and learned he was at Cuba attending a sale. The sheriff went on to Cuba and there was informed the defendant had been seen going east on Highway 66. Following along in that direction with his deputy Chris Enke, and James Ransom, marshal of Steeleville, the officers reached a point near Bourbon, 16 miles east of defendant's home, when they passed a restaurant known as Dew Drop Inn or Ozark Inn and noticed the defendant's car parked there headed west. They stopped and found the defendant and his wife just getting up from a table after having eaten lunch. It was about noon. The sheriff says he told the defendant he had been up his place "and had found certain things there." On objection the statement was stricken out and the jury directed to disregard it. The sheriff then said he told the defendant he had a search warrant for his place on the road and had been up there. On objection the court ruled the statement as to the search warrant was inadmissible and struck it out. Being asked to tell what was said and done between him and the defendant there at the time, the sheriff answered: "Well, I also arrested him on the search warrant I had been up to his place on." On objection of defendant's counsel this answer was stricken out as being improper and prejudicial.
The sheriff then continued his story saying he told the defendant he would have to come to Steelville (the county seat) and directed him to drive his car ahead of the sheriff's car. The defendant agreed and as he started toward his automobile the sheriff asked him if he had anything in it and the defendant answered "Yes." The next question propounded by the State's counsel was: "What did he have in his car?" The witness answered that Deputy Sheriff Enke opened the car door and inside were five one-gallon jugs of alcohol and a case of empty flat pint bottles. Without having previously objected to the question, defendant's counsel then interposed objection on the ground that the sheriff had no search warrant for the car and was not shown to have had any reasonable ground for suspicion at the time that there was contraband liquor therein. The objection was overruled and exceptions were saved.
The liquor was in the back part of the car which was a two seated Pontiac. The inner tube of an automobile tire was passed around the five jugs, apparently to keep them from breaking. The sheriff drove his car back to Steelville and Deputy Sheriff Enke followed in the defendant's car. Samples were taken of each of the five bottles and sent to the Federal Prohibition Department in St. Louis for analysis. One sample was introduced at the trial and the government chemist testified it was moonshine alcohol. The sheriff was later recalled to the stand and said he didn't know how defendant's automobile happened to be at Dew Drop Inn. He didn't see the defendant move the car there until directed to do so, and didn't know whether the defendant had driven the car with the liquor in it before that or not.
Deputy Sheriff Enke testified he was standing close to the defendant's automobile when the defendant and the sheriff approached from the restaurant. Enke had already opened the door and looked in the automobile and he said to the sheriff "there is a whole lot of liquor in here." Defendant's counsel objected on the ground that the officers had no search warrant and the objection was overruled and exceptions saved. Enke said he could not remember whether he heard the sheriff ask the defendant if there was anything in the car, but thought he did hear the question and the defendant's answer that "he had some stuff in there." That was after Enke had already opened the car door and looked inside.
On cross-examination, Enke said he saw the liquor in the car while he was standing on the ground. There was a gunnysack lying over the top of the jugs but he could see them, and could have seen them before he opened the door if he had looked in the window — though he didn't look. At this point defendant's counsel objected that the foregoing testimony encroached on the constitutional rights of the defendant as a citizen of the State, there being no search warrant for the car, and moved that it be stricken from the record and the jury instructed to disregard it. The objection was overruled and the exceptions saved. A little further on Enke stated he thought the sheriff asked the defendant if he had anything in the car and defendant answered in the affirmative about the time he (Enke) opened the car door and looked in.
The witness said he didn't see any groceries or anything else in the car except the liquor, that is, nothing else that could have been the "stuff" the defendant referred to when he answered the sheriff. And he said further he did not see the defendant's car move at any time before the party started to Steeleville and didn't know who put the liquor in the automobile or whether or not the defendant transported the liquor in the car to the place where the officers found it parked.
John Ransom, the marshal of Steelville who accompanied, the sheriff when they went to the defendant's residence, was asked what was done there. The witness answered that they went to the house and inquired about Mr. King (the defendant). The next question was "Did you do anything else while you were there?" Defendant's counsel objected that the question inquired into an extraneous matter not connected with the case, and was prejudicial. The court permitted the question to stand and exceptions were saved. Then followed these questions and answers: ...
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