State v. Perkins

• Decision Date: 04 June 1929
• Docket Number: No. 29539.,29539.
• Citation: 18 S.W.2d 6
• Parties: STATE v. PERKINS.
• Court: Missouri Supreme Court

18 S.W.2d 6

STATE v. PERKINS.

No. 29539.

Supreme Court of Missouri, Division No. 2.

June 4, 1929.

Appeal from Circuit Court, Chariton County; J. E. Montgomery, Judge.

Roy Perkins was convicted of unlawfully transporting moonshine whisky, and he appeals. Reversed, and defendant discharged.

Birch & Crow, of Keytesville, for appellant.

Stratton, Shartel, Atty. Gen., and Claude E. Curtis, Sp. Asst. Atty. Gen., for the State.

HENWOOD, C.

The defendant was convicted, in the circuit court of Chariton county, of unlawfully transporting moonshine whisky. By the verdict, judgment, and sentence, his punishment was fixed at imprisonment in jail for 90 days, and he then appealed to this court.

The evidence offered by the state is fully and fairly stated in the brief of the Assistant Attorney General, as follows:

"Bert Kelley, deputy constable, testified that he lived on a farm, one-half mile east of Salisbury. There was a road running east and west along the north side of his place. This road turned north at a point one mile east of the town of Salisbury. The road runs north a quarter of a mile to the railroad tracks, and then on a little farther to the State Highway. On August 6, 1927, he was working on his farm along the road on the north side of the farm, about thirty yards from where the road turned north. About 2:30 in the afternoon, he saw the defendant and one Clarence Bills driving east in the defendant's Ford car, on the road north of his place. They turned at the corner and went north to the railroad tracks and there passed out of his sight because of a steep incline of the road at the railroad crossing. They returned within five or ten minutes and went back toward Salisbury. He had known the defendant and Bills for a great many years. Immediately after they came back, he got into his wagon and drove north to the railroad tracks, where he got out of the wagon. While walking along the road a few feet north of the railroad tracks, he noticed, on the side of the right of way, a gallon jug of whiskey, partially covered with green weeds. The jug was about two and one-half feet from several tracks made by human beings. The weeds covering the jug were green, and apparently had been pulled only a few minutes before he found the jug. He left his boy, who had followed him, to watch the whiskey, while he went home to call the prosecuting attorney. He was gone about thirty minutes. From the time he saw the defendant and Bills go north until the time he found the jug, he was in sight of the road, and saw nobody else pass along there. Between three and four o'clock, he met the prosecuting attorney at the place where the jug was found. During the afternoon, he saw the defendant and Bills pass along by the place where the jug was found several times, about every thirty minutes. He walked down thirty or forty yards north of where the jug was found and observed automobile tracks which showed that a car had turned around at that point and had gone back south. These tracks were just like the tracks made by the defendant's car on the south side of the railroad tracks. No other automobile tracks were plain at the time. The jug was found on the west side of the right of way. It was on a bank which had partially caved in. There was a pretty deep cut in the road at this place. These men stationed themselves in hiding in a draw, back of the bank where the jug was found, and stayed there until about 8:30 or 9 o'clock that night. At this time they saw the defendant and Bills coming in their automobile from the north. They stopped about 10 feet north of the jug, and Bills got out of the car. The defendant, who had been driving the car all afternoon, and who was driving at this time, backed the car down the hill, apparently because the brakes would not hold. Bills told defendant to turn the lights off, and defendant did so. Bills then crossed over and reached down to get the jug, whereupon the officers arrested the defendant and Bills, and took them to town. The jug of whiskey was turned over to Mrs. Anna Welch. All of this happened in Chariton County, Missouri.

"On cross-examination, he said he did not see the defendant turn his car around on the north side of the railroad tracks, where the jug was found. He did not know who made the automobile tracks found there. He did not deny that he stated in his deposition, prior to the trial, that he did not know how old the tracks were when he found them nor who made them. He admitted that he testified, at the preliminary hearing, that the defendant and Bills seemed to be looking for something on the afternoon in question, when they were driving up and down the road near the railroad tracks.

"On re-direct examination, he said the tracks he found had not been crossed by any other tracks.

"Ben Prather testified that, about 6:30 on the evening of August 6, 1927, he went east of Salisbury to the place where the jug of whiskey had been found. He and Kelley and the prosecuting attorney stationed themselves in hiding near the jug and stayed there until 8:30 or 9 o'clock, when defendant Perkins and Jack Bills came. These men drove up in a car from the north. They stopped within a few feet of the jug and Bills got out of the car. The defendant backed the car to the foot of the hill. Bills told the defendant to turn the lights out and he did so. Bills then went to the jug and took the weeds off and reached down after it, when he was arrested. Bills walked straight to the jug. They arrested both men and took them to Salisbury.

"On cross-examination, he said that the officers searched defendant's car, but did not find any whiskey.

"On redirect examination, he said that, when the defendant's car was searched, two soda pop bottles and two one-half gallon fruit jars were found therein.

"On recross-examination, he said that neither the pop bottles nor the fruit jars had an odor of whisky.

"Anna Belle Welch testified that she had worked at the Missouri University, St. Louis College of Pharmacy and the University of Illinois, and had had some experience in the examination and testing of intoxicating liquor. She tested the gallon of liquor in the jug, and found it to contain 45 per cent of alcohol by volume. According to her knowledge and experience, it was moonshine whiskey.

"T. P. Schooler testified that he was a justice of the peace of Salisbury township. On the night of August 6,...