State v. Nelson
| Citation | 21 S.W.2d 190 |
| Decision Date | 26 October 1929 |
| Docket Number | 4661 |
| Parties | STATE v. NELSON. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Lawrence County; Emory E. Smith, Judge.
Charley Nelson was convicted of possessing corn whisky, and he appeals. Reversed, and defendant discharged.
Robert Stemmons and R. V. McPherson, both of Mt. Vernon, for appellant.
Charles R. Landrum, of Mt. Vernon, for the State.
Defendant was charged on an amended information with possession of corn whisky. A motion to strike out this amended information, on the ground that it was a departure from the original information charging transportation of liquor, was overruled. On trial to a jury defendant was found guilty, and his punishment fixed at 30 days in jail. Defendant has appealed.
The only assignment of error which need be considered raises the question of the sufficiency of the evidence to sustain the conviction. The case was submitted on printed briefs, of which fact we make mention because the present prosecuting attorney, who did not try the case, should be commended in his effort to aid this court by doing his full duty in the matter. The facts are brief. Three witnesses testified for the state. Defendant stood on his demurrer to the evidence, and therefore offered no evidence.
The record shows that W. H. Austin, while sheriff of Lawrence county, in June, 1927, was called to the western part of the city of Mt. Vernon because of some disturbance, and there found this defendant in the rear seat of an automobile belonging to one Tom Phillips, who was, at the time, in the front seat. Both defendant and Tom Phillips were sleeping, and both were intoxicated. The sheriff roused defendant and found a bottle with some intoxicating liquor in it, "right in the seat, right on the cushion under Birdie (the defendant) there." Russel Ford, a deputy who had accompanied the sheriff, testified they found "a pint of whisky in the back, a part of a pint in the back seat where Nelson was." Mr. Barker, a night watchman, gave substantially the same testimony. There was some evidence that the whisky was corn whisky, as charged in the information. The witnesses all admitted the whisky was not on the person of defendant at the time it was discovered.
We think this testimony amply sufficient to sustain a charge of drunkenness against defendant, but insufficient to warrant or authorize a conviction based on a charge of possessing intoxicating liquor. Proof of intoxication might become a circumstance tending to connect a person with the possession of intoxicating liquor, where there was no other reasonable explanation of the circumstance. State v. Scovill (Mo. App.) 15 S.W.2d 931. But evidence of intoxication alone does not tend to establish the charge. State v. Compton (Mo. App.) 297 S.W. 413; State v. Mackey (Mo. App.) 267 S.W. 5.
The evidence in this case fails to show defendant exercised any dominion over...
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