State v. Nave

• Decision Date: 25 June 1926
• Docket Number: 27011
• Parties: STATE v. NAVE et al
• Court: Missouri Supreme Court

285 S.W. 723

STATE v. NAVE et al

No. 27011

Supreme Court of Missouri, Second Division

June 25, 1926

D. F McConkey and Robert L. Gideon, both of Forsyth, for appellants.

North T. Gentry, Atty. Gen., and Harry L. Thomas and A. B. Lovan Sp. Asst. Attys. Gen., for the State.

OPINION

HIGBEE, C.

The information charged that the defendants transported hootch moonshine, corn whisky, on June 3, 1925, contrary to the form of the statute, etc. On a trial the jury returned a verdict as follows:

'We, the jury, find the defendants Mack Nave and Howard White guilty as charged in the information but cannot agree as to the punishment. A. E. Dean, Foreman.'

Thereupon the court assessed the punishment of each of the defendants at imprisonment in the penitentiary for a term of two years. After motion for new trial was overruled, the defendants were separately sentenced, and they appealed.

The evidence for the state is that W. H. Simmons, sheriff of Taney county, having received information, on June 3, 1925, that certain persons were going across Blackwell's ferry in Taney county on that evening with liquor, he and his deputy, Riley Thompson, went to the ferry about sundown and there concealed themselves. After they had waited awhile the defendants drove up in a Ford touring car and stopped at a point about 20 years from the officers. It was then 'dusky dark,' but the moon was shining and the officers plainly saw the defendants in the car. The horn on the car was sounded, 'and when they tooted the horn some fellow across the river hollered, and they would holler and he would holler.' Perry Nave was across the river on a horse, and there was also a boy in a wagon. Perry Nave came over on his horse, and the defendants got out of the car. Howard White then reached over the side of the car and took a half gallon fruit jar nearly full of corn whisky from the front seat and passed it around. It was then set down by one of the defendants on the ground near the front wheel or running board of the car. When the wagon drove up they loaded some sugar, corn meal, corn, and sacks into the wagon out of the car. On cross-examination the officers stated that Howard White took the jar of whisky off the front seat of the car and not out of the bib of his overalls. The officers arrested the defendants and seized the jar of whisky, which they marked for identification. It was offered in evidence at the trial and shown to be corn whisky.

The witness Thomason admitted that he had pleaded guilty to a charge of embezzlement of postal funds while post master at Cedar Valley, and had paid a fine therefor.

The defendant White testified:

'I had the whisky on my person, but I was not transporting it. Mack said he would go back with us if I would bring him some groceries over to the river with us, and we went to Branson and Hollister, and I bought the whisky from a bootlegger at Hollister, and we got the sugar and groceries, and they were supposed to meet us at the river with the wagon. I put the whisky in the bib of my overalls -- not in the car. We went over to Branson and got Mack's groceries and drove to the river and honked the horn, and Mack hollered, and they answered us over the river, and they come across the river -- Perry Nave, Mack's brother, and this boy, I don't know who it was -- and they come across the river, and I was in a hurry to get back, and it was dark, and we got out of the car. I took this whisky out of my overalls and set it down on the ground, and we unloaded the stuff. I did not take the whisky out of the car. It was not in the car only when I was in the car. Simmons and Thomason searched the car. This was in June. I bought nearly half a gallon; it was in a fruit jar. I don't know who the bootlegger was; I paid him $ 7.50 for it.'

The defendant Mack Nave testified:

'I did not transport any moonshine whisky, about the third of last June. I went with Plympton and White in their car to Hollister. I told them I had some junk, 300 or 400 pounds. White said we can bring them back in the Ford. I had flour, sugar, beans, and stuff. I told the boys to meet me at the river with the team and wagon. I rode with White in the front seat of the car to the river. I saw no whisky until after we stopped and unloaded the car. I put no whisky in the car; it was Howard White's car. I took none out. I never saw White put any in the car or take any out. White had something in the bib of his overalls, and asked me on the road between Hollister and the ferry if I would like a drink and I said not without water. If White took a jar of whisky out of the car I never saw him.'

Witness admitted he had been convicted two or three times and paid little fines in the justice court and in the circuit court for fighting and disturbing the peace.

1. Appellant's learned counsel insist that the proof of the corpus delicti is not sufficient to sustain the conviction. The criminal act charged is the transportation of hootch, moonshine, corn whisky, in violation of section 21, p. 242, Laws 1923. The term 'transportation,' as used in this connection, is defined --

'to mean and include every mode, method, or means of carrying, or conveying, intoxicating liquor from place to place in any container, or receptacle, of whatsoever kind or character, and by whatsoever means used, except carrying intoxicating liquor on person.' Section 19, Laws 1923, p. 242.

'The prosecution has the burden of proving that a crime has been committed before the jury proceed to inquire as to who committed it.' 16 C. J. 529.

Counsel rely upon State v. Dickson, 78 Mo. 438, 447, where Judge Sherwood said:

'Proof of the corpus delicti involves of course two things: First, a criminal act; second, the defendant's agency in the production of the act. Wharton Crim. Ev. § 325, and cases cited. 'But (as is well said by an eminent author heretofore cited), it is clearly established, that it is not necessary that the corpus delicti be proved by direct and positive evidence, and it would be most unreasonable to require such evidence. Crimes, and especially those of the worst kinds, are naturally committed at chosen times, and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present or admit, or society must be broken up. Nor is it very often that adequate evidence is not afforded by the attendant and surrounding facts, to remove all mystery, and to afford such a reasonable degree of certainty as men are daily accustomed to regard as sufficient in the most important concerns of life; to expect more would be equally needless and absurd' In Burdette's Case, 4 B. & Ald. 121, this subject underwent much discussion, and was elaborately treated by the bench. Mr. Justice Best said: 'When one or more things are proved from which experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases. Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough if its existence be...