State v. Kissinger

• Decision Date: 20 December 1938
• Docket Number: 35890
• Parties: The State v. Doyle Kissinger, Appellant
• Court: Missouri Supreme Court

123 S.W.2d 81

343 Mo. 781

The State v. Doyle Kissinger, Appellant

No. 35890

Supreme Court of Missouri

December 20, 1938

Appeal from Camden Circuit Court; Hon. C. H. Skinker Judge.

Reversed and remanded.

Alvin J. Kroehle, Phil M. Donnelly and J. Andy Zenge Jr., for appellant.

(1) The court erred in permitting the sheriff of Camden County, Sam Laurie, and his deputy, Pete Osborne, to testify as to a purported admission allegedly made by defendant's wife in response to questions of the said sheriff after defendant was in the custody of said officers and under arrest, said questions having been asked without advising the defendant's wife of her right to refuse to give evidence against her husband, all of which was admitted over the objection and exception of defendant. State v Hogan, 252 S.W. 388; State v. Higgins, 12 S.W.2d 63; Sec. 3692, R. S. 1929; State v. Burlingame, 146 Mo. 225; State v. Hill, 76 S.W.2d 1094. (2) The court erred in allowing said verdict to stand for the reason that there was no evidence to sustain same inasmuch as there is no evidence that the defendant drove the car in Camden County or that the defendant was even in the car in Camden County, Missouri, and the evidence overwhelmingly proved that the defendant was not intoxicated at any time during the day, and the State in failing to establish both facts, failed to make a case against said defendant. Sec. 3734, R. S. 1929; State v. Daubert, 42 Mo. 246; State v. Liston, 292 S.W. 48; State v. Bass, 251 Mo. 126; State v. Keller, 104 S.W.2d 248; State v. Gregory, 96 S.W.2d 53; State v. Anno, 296 S.W. 828. (3) The court erred in allowing said verdict to stand for the reason it is cruel, excessive and unusual in view of the testimony adduced in this case and in violation of Article 2, Section 25, of the Constitution of Missouri, and said verdict could only have been reached as the result of bias and prejudice on the part of the jury. Art. II, Sec. 25, Mo. Const.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

(1) The demurrer offered at the close of all the evidence was properly overruled as there was substantial evidence to support the verdict of guilt. Sec. 7783, R. S. 1929; State v. Smith, 300 S.W. 1082; State v. Fitzpatrick, 267 S.W. 906; State v. Johnson, 55 S.W.2d 968; State v. Gregory, 96 S.W.2d 53, 339 Mo. 133. (2) Testimony from a witness of statements made by a wife in the presence of her husband before his arrest are admissible against the husband. Sec. 3692, R. S. 1929; State v. Burlingame, 48 S.W. 72, 146 Mo. 207; State v. Hill, 76 S.W.2d 1092; State v. Burk, 137 S.W. 969, 234 Mo. 578; State v. Peters, 242 S.W. 897. (3) The punishment inflicted in the instant case is not excessive, cruel or unreasonable in violation of Article II, Section 25, Constitution of Missouri. Sec. 7786, R. S. 1929; State v. Revard, 106 S.W.2d 911. (4) The verdict is not the result of bias and prejudice of the jury caused by improper remarks of the prosecuting attorney. State v. Raines, 62 S.W.2d 727, 333 Mo. 728. (5) It was not error for the court to pass judgment and sentence without allocution after overruling the motion for new trial. Secs. 3713, 3714, R. S. 1929; State v. Kanupka, 153 S.W. 1056, 247 Mo. 713.

OPINION

Tipton, J.

In the Circuit Court of Camden County, Missouri, the appellant was convicted of operating a motor vehicle while in an intoxicated condition, and his punishment assessed at imprisonment in the county jail for one year and a fine of $ 100. From that judgment and sentence, he has duly appealed.

The appellant's first contention is that his peremptory instructions in the nature of demurrers to the evidence should have been given.

Section 7783, Revised Statutes 1929, paragraph (g), provides that "no person shall operate a motor vehicle while in an intoxicated condition." Therefore, to sustain a conviction, the State must adduce substantial evidence, first, that a defendant operated a motor vehicle, and, second, that said defendant was in an intoxicated condition while he was operating the motor vehicle.

The record in this case shows that on July 20th, 1937, the appellant purchased a model "T" Ford car in the neighborhood of Richland. This town is in Pulaski County, near the Camden County line. It was necessary to make some repairs on the car so it was taken to a blacksmith shop located in Richland. Late in the afternoon the car was driven from the shop by Fred Hammock, accompanied by the appellant, for the purpose of making a test run to see if it ran satisfactorily. After traveling about two blocks from the shop, Hammock was stopped by Roy Caldwell, sheriff of Pulaski County, and ordered to return the car to the shop for the reason that there were no license tags on it, and also because Hammock had no title to it. After the car was returned to the shop, the sheriff told Hammock that he could pull it wherever he wished, that he could not prevent him from so doing. A wrecker was then obtained from a local garage and the car was attached to the rear end of it. Hammock steered the car while the appellant drove the wrecker just into Camden County where it was disconnected from the car. The car was left with the appellant and his wife. In the meantime the sheriff of Pulaski County had called Sam Laurie, the sheriff of Camden County, notifying him of the incident. Laurie and Osborne, his deputy, then started toward Richland. They found the car about six miles from Richland, standing in the middle of the road. Mrs. Kissinger, the appellant's wife, was sitting in the car but was not in the driver's seat. The appellant was some distance up the road, approaching the car with a can containing gasoline. The appellant was placed under arrest.

We think the evidence was substantial to show that the appellant was in an intoxicated condition during all the afternoon and up to the time he was arrested.

W. A. Gibson, a deputy sheriff of Pulaski County and marshal of Richland, testified that at the time the car was driven in the streets of Richland the appellant "was kind'a in a stupor, you know; his head down, like he didn't know what to do." As to the appellant's condition at the time the car was pulled to the Camden County line, he stated, "Well, I wouldn't think he was able to drive a car, would be my judgment about it; that he was intoxicated too much to drive a car."

Roy Caldwell, the sheriff of Pulaski County, testified that he was called to Richland and shortly after he arrived there he saw "Mr. Kissinger and his wife come up the street, and he was in a staggering condition at that time. . . . He was in an intoxicated condition. . . . I told Mr. Hammock that Mr. Kissinger wasn't in any condition to drive the car. . . . Well, he was staggering, and his eyes were real red, and he couldn't speak plain."

J. C. York testified that he saw the appellant take a small drink of whiskey.

Sam Laurie, the sheriff of Camden County, testified that when he saw the appellant in Camden County, about six miles from Richland, he was under the influence of intoxicating liquor, and he arrested him; that he was in an intoxicated condition; that "he talked thick-tounged, and he smelled like -- well, I could smell liquor. Q. In other words, you thought he was pretty drunk at that time, didn't you? A. Well, yes."

Osborne, a deputy sheriff of Camden County, testified, "Well, he was intoxicated; I don't know how drunk he was. Q. Was he staggering? A. Yes."

Certainly the above evidence is sufficient to show that the appellant was in an intoxicated condition at the time the car was driven from the Camden County line to the place where it was found by the sheriff of that county. [State v. Johnson, 55 S.W.2d 967; State v. Raines, 333 Mo. 538, ...