State v. Lambert

• Decision Date: 12 December 1927
• Docket Number: 27960
• Citation: State v. Lambert, 300 S.W. 707, 318 Mo. 705 (Mo. 1927)
• Parties: The State v. Elmer Lambert and Fred Lambert, Appellants
• Court: Missouri Supreme Court

300 S.W. 707

318 Mo. 705

The State v. Elmer Lambert and Fred Lambert, Appellants

No. 27960

Supreme Court of Missouri

December 12, 1927

Appeal from Daviess Circuit Court; Hon. John L. Schmitz Judge.

Reversed and remanded.

Dudley & Brandom for appellants.

(1) There should be no conviction on suspicion, however strong the suspicion might be. State v. Ballard, 104 Mo 637; State v. Woodson, 175 Mo.App. 393; State v Scott, 177 Mo. 672; State v. Ridge, 275 S.W. 60. (2) The court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict. Sec. 4025, R. S. 1919.

North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) There was sufficient evidence to take the case to the jury. They were properly instructed on circumstantial evidence, and evidently found that the facts and circumstances in the evidence were consistent with each other and with the guilt of the defendants, and inconsistent with any reasonable theory of their innocence. State v. Mitchell, 252 S.W. 383; State v. Turner, 274 S.W. 35; State v. Clinkingbeard, 247 S.W. 202. (2) Instruction 9 is reasonably clear to the intelligent juror, and there is nothing to indicate that the defendants' rights were prejudiced by it in its existing form. (a) If requested so to do, courts should instruct, where two or more defendants are tried jointly, that they may find one or more guilty, or one or more innocent, or all guilty, or all innocent. State v. Vaughan, 200 Mo. 19. (b) But failure to so instruct is not reversible error where the request is not made, or where the defendant does not except with sufficient particularity, to the failure of the court to instruct upon all the law of the case. State v. James, 216 Mo. 400. (3) It does not appear from the record that defendants offered any instructions, or requested other instructions than those given. Therefore, no complaint can be heard of failure to instruct upon all phases of the offense, especially where, as in this case, no exceptions were saved as to such failure. (3) Where the jury assesses a joint punishment against co-defendants, it is, in effect, a failure to assess any, and the judge may fix the punishment of each under Sec. 4048, R. S. 1919. State v. Taylor, 261 Mo. 225; State v. Pearson, 234 Mo. 262; State v. Carroll, 232 S.W. 699; State v. Thornhill, 174 Mo. 364; State v. Gordon, 153 Mo. 576. (a) Defendants made no objection to the court's receiving the verdict and discharging the jury; hence they cannot here attack the legality of the verdict. State v. Hubbs, 242 S.W. 675. (b) Objections to the verdict come too late, after the same is received. State v. Levan, 267 S.W. 935; State v. Ridge, 274 S.W. 496.

OPINION

Walker, J.

The appellants were charged by information in the Circuit Court of Daviess County with the transportation of hootch, moonshine and corn whiskey; upon a trial to a jury they were convicted and jointly fined $ 500. The offense charged being a felony, the appellants have appealed from the judgment rendered thereon to this court.

About six o'clock P. M., August 29, 1925, a witness for the State saw the appellants who were riding in a stripped Ford car, by which is meant one without a top and fenders. When they reached a point on the road near the town of Pattonsburg, where the road was lined with tall weeds, Elmer Lambert, who was at the wheel, stopped the car. Fred Lambert alighted therefrom, took a glass jar containing a liquid from a box on the rear of the car and carried it into the weeds. He reappeared in a few minutes without the jar, got into the car, which they turned around in the road, and drove away. The witness, who was a boy about sixteen years of age, ran home and related the occurrence to his father. The latter, accompanied by a deputy sheriff, entered the tall weeds opposite where the boy said the car had stopped and where the tracks in the road showed that it had been turned around. Upon a search the glass jar, about half full of what was later shown to be corn whiskey, was found; it suited the description of that described by the boy as having been taken into the weeds by Fred Lambert.

The defense was an alibi. Fred Lambert testified that at the time the State's witness said he was carrying the jar of liquor into the weeds, he was in company with two others (naming them) three and a half miles northwest of Pattonsburg on his way home. That on the way they stopped at a railway crossing while a train was passing. Elmer Lambert testified that from five o'clock until six:twenty-five P. M., on the day the offense is charged to have been committed, he was in Pattonsburg, where he had gone in the stripped car referred to, and at about the last named hour he started home. When he went for his car he found it on the opposite side of the alley from where he had parked it. The testimony of the appellants as to their whereabouts at the time the offense is alleged to have been committed was corroborated in a general way by several witnesses. We say in a general way, because they are somewhat indefinite as to the exact time the witnesses were in the company of the appellants.

Appellants' voluminous motion for a new trial, consisting of thirty paragraphs, is reduced to eight in the assignment of errors (these assignments being wholly unnecessary under our Criminal Code, Sec. 4106, R. S. 1919). A further reduction to three subjects is made in the brief upon which the appellant rely for a reversal and to which our review will be limited. [State v. Simpson, 295 S.W. 739; State v. Murrell, 289 S.W. 859.]

The three contentions relied upon are: (1) the insufficiency of the evidence; (2) the legal propriety of instructions numbered nine and ten, given by the court; and (3) the regularity of the verdict or, incidental thereto, the right of the court to assess separate punishments.

Omitting formal allegations in Instruction Number Nine (concerning the legal propriety of which there is no question), the portion of the instruction here under review is in effect as follows: "If you find that the defendants, on the day named, did transport hootch, moonshine, corn whiskey, you will find them guilty and assess their punishment at imprisonment in the penitentiary for a term of not less than two years nor more than five years or by a fine of five hundred dollars or imprisonment in the county jail for a term of not less than three months nor more than twelve months or by both such fine and imprisonment."

Instruction Number Ten is as follows:

"The court instructs the jury that if you find the defendants guilty of transportation of hootch, moonshine, corn whiskey as charged in the information your verdict may be in the following form: 'We the jury find the defendants guilty of transportation of hootch, moonshine, corn whiskey as charged in the information and we assess their punishment at .'"

I. It is evident from the verdict that the jury, as triers of the facts, did not give credence to the testimony of the appellants and their witnesses. Measured by the rule which should be applied in determining whether the jury was justified in their conclusion concerning the probative force of the testimony adduced, we are of the opinion that the State's testimony was of a sufficiently substantial nature to sustain the verdict and that the jury did not err in so holding. We therefore overrule this contention.

II. The objection urged to Instruction Nine is that the court erred in not telling the jury that they had the right to find one of the defendants guilty and one not guilty or both guilty or both not guilty, if the evidence warranted. The reason urged in support of this contention is that the jury was thereby misled by the terms of the instruction in that it directed them that they had the right to fix a joint punishment, which they did, and were not required to return a separate finding as to each defendant, as prescribed by Section 4046, Revised Statutes 1919.

The appellants' contention is not without merit and is not subject to the respondent's criticism as being "technical and trivial." The instruction, as given, was properly and timely objected to and this objection was formally preserved in the motion for a new trial. It is the duty of the trial court under our statute (Sec. 4025, R. S. 1919) whether requested or not, to instruct the jury, in writing, upon all questions of law arising in the case which are necessary for their information in giving their verdict. The mandatory nature of this statute has reference to the giving of such instructions as to the general principles of law which of necessity must be applied by the jury in reaching a correct conclusion upon all of the essential issues submitted for their consideration. [State v. London, 295 S.W. l. c. 549 and cases; State v. English, 308 Mo. 695, 274 S.W. 470; State v. Lackey, 230 Mo. 707.] It is necessary for the information of the jury therefore in returning a verdict against defendants jointly charged, that they be informed as to the limit of their authority and the manner in which it may be exercised. This being true the error in the instruction becomes evident. This conclusion accords with reason and finds support in precedent.

In State v. Vaughan, 200 Mo. l. c. 18, ...