State v. Miller
| Decision Date | 18 December 1928 |
| Docket Number | 28783 |
| Citation | 12 S.W.2d 39 |
| Parties | STATE v. MILLER |
| Court | Missouri Supreme Court |
Lz Banta, of Ava, and Moore & Moore, of Ozark, for appellant.
Stratton Shartel, Atty. Gen., and Hibbard C. Whitehill, Sp. Asst Atty. Gen., for the State.
On March 8, 1927, the prosecuting attorney of Douglas county filed in the circuit court an information charging defendant with transporting intoxicating liquor, to wit, moonshine. The jury returned a verdict of guilty, and assessed his punishment at four years in the state penitentiary. The defendant appealed from the judgment entered on the verdict.
The evidence on behalf of the state warrants the finding that, on October 30, 1925, the sheriff of Douglas county, in pursuance to information received that a car loaded with whisky would pass through the county, accompanied by a deputy, went to a hill called Girber, in said county, and there parked his car around a curve in the road. As the night was chilly, they built a fire and awaited events. On the passing of 90 minutes, more or less, a car was heard coming up the hill which stopped after rounding the curve, and then began to back. The sheriff and his deputy ran to the car, and ordered the occupants out, and the two men in the front seat immediately obeyed. In his search for whisky, the sheriff unbuttoned the curtains of the car, and observed a third man in the rear seat with a couple of shotguns across his lap. The sheriff took the guns from him, and ordered him out. Thereupon the sheriff found in the car a box of ten or twelve half-gallon jars, and, picking out one at random, he opened it, and ascertained by the sense of smell that it contained moonshine whisky. The other jars were not opened. Handcuffing two of the men together, the deputy drove them in the sheriff's car to the jail. The sheriff boarded the car with defendant, and defendant drove the car, together with its contents, to the jail. The record recites that defendant was driving the car at the time the sheriff apprehended them. On the way to the jail, the defendant asked the sheriff how much he would take to let him get by. As the sheriff refused to treat with him, he inquired of the deputy, when he stopped at a creek to fill his radiator, if there was any show to get by. At this point he informed them that his name was John Miller. Driving to the jail, defendant stopped the car, and, when the sheriff alighted, he stepped on the gas and escaped with the car and its contents. About five months later defendant was arrested in Oklahoma.
As to the identification of defendant, the sheriff stated that he had never seen defendant previous to his arrest, that it was a light night, although it was somewhat cloudy; that he never saw him subsequently until his arrest in Oklahoma; that he saw him 10 or 15 minutes in the glare of the automobile lights upon the first arrest; and that he could not be mistaken as to the identity of defendant. Upon being asked if defendant was the man apprehended on that night, the deputy sheriff said he was, but that he could not be positive.
Defendant's evidence tended to deny that he was the man who escaped, and also tended to show an alibi. He admitted a prior conviction for a violation of the prohibition act. In rebuttal, the state's evidence tended to show that defendant's reputation for truth and veracity was bad, as well as that of some of his witnesses. A further relation of facts, if necessary, will appear in a discussion of the issues raised.
I.The defendant avers that the trial court erred in refusing to instruct the jury to acquit him because the evidence failed to establish, first, that any jar found in the automobile contained moonshine; second, that defendant was transporting moonshine; and, third, that defendant was interested, jointly or otherwise, in transporting moonshine.
(a) The evidence as to the first specification tends to show that, within a few moments after the car defendant was driving had been stopped, the sheriff opened at random one of the fruit jars carried in the automobile, and by the sense of smell alone determined and testified that its contents was moonshine whisky. The dictionary defines moonshine as illicitly distilled spirits. Illicitly means unlawfully. It also defines spirit as a strong distilled liquor or liquid, commonly used in the plural. To distil is to extract volatile substances by vaporization and condensation. Whisky is defined as an alcoholic liquor obtained by the distillation of a fermented starchy compound, usually a grain. Moonshine whisky may then be defined as an alcoholic spirit illicitly distilled, and is included within the term 'moonshine.' With the fact shown that moonshine is an alcoholic distilled spirit, we take judicial notice that it is intoxicating. State v. Martin (Mo. Sup.) 292 S.W. 39.
As to the first specification, defendant argues that the testimony of the sheriff that he determined by the sense of smell that the contents of the jar was moonshine whisky was without probative force, because such comprehension cannot be made the basis of a conviction. Comprehension is understanding or knowledge, and is conveyed to us only through the action of one of the five senses, which are hearing, seeing, feeling smelling, and tasting. They are of equal degree and importance, although a certain sense may operate more acutely than the others, and may be acute in some individuals while dulled in others. However, practically every person in a greater or lesser degree enjoys every sense. Consequently, when a witness is able to testify that he comprehended a fact by virtue of any one of the senses, we must receive such testimony, if otherwise competent and relevant, in proof of such fact. The weight and credibility of such testimony must, however, be left to the determination of the jury,...
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