State v. Raines

• Decision Date: 12 August 1933
• Docket Number: No. 32774.,32774.
• Citation: 62 S.W.2d 727
• Parties: THE STATE v. OLEN RAINES, Appellant.
• Court: Missouri Supreme Court

62 S.W.2d 727

THE STATE v. OLEN RAINES, Appellant.

No. 32774.

Supreme Court of Missouri, Division Two.

August 12, 1933.

Appeal from Pettis Circuit Court. — Hon. ____, Judge.

AFFIRMED.

Jones & Wesner for appellant.

(1) The court erred in failing and refusing to discharge the jury and declare this cause to be a mistrial after the highly prejudicial conduct and remarks of the assistant prosecuting attorney made in the opening statement. These remarks tended to accuse and put the defendant upon trial for three separate and distinct felonies in this one case, to-wit, the charge upon which he was actually being tried, "driving a car while in an intoxicated condition," "the selling of intoxicating liquor," and "the transportation of intoxicating liquor," and by the acts and conduct of the attorney for the State and the court the appellant was deprived of a fair and impartial trial by a fair and impartial jury. State v. Levy, 170 S.W. 1117; State v. Saunders, 288 Mo. 654, 232 S.W. 977; State v. Dixon, 253 S.W. 747; State v. Abney, 278 S.W. 724; State v. Miller, 44 S.W. (2d) 17. The State was bound to prove that appellant did operate his automobile on the "highways" while in an intoxicated condition by reason of the charge as laid in the information. Kelley's Criminal Law & Procedure (4 Ed.) p. 201, sec. 241; State v. McNerney, 94 S.W. 740; State v. Young, 146 S.W. 73. To sustain a conviction it was incumbent upon the State to prove that appellant was in an intoxicated condition while the motor car was in operation upon the highways as laid in the information. 42 C.J. sec. 1292, p. 1330. The record is devoid of proof of appellant's condition at any time or place while the automobile was in operation and does not foreclose every reasonable theory of innocence. State v. Perkins, 18 S.W. (2d) 6: State v. Hardy, 326 Mo. 969, 34 S.W. (2d) 102; State v. King, 53 S.W. (2d) 257.

Roy McKittrick, Attorney-General, and Geo. B. Strother, Assistant Attorney-General, for respondent.

WESTHUES, C.

Appellant was convicted in the Circuit Court of Pettis County, Missouri, of driving an automobile while in an intoxicated condition. The motion for new trial, filed by appellant, was overruled and a sentence of two years' imprisonment in the penitentiary was imposed in accordance with the verdict of the jury. From this sentence an appeal was taken.

[1] Appellant, under a number of assignments of error, has questioned the sufficiency of the evidence to support the verdict. These assignments, as will be presently noticed, are without merit. It is claimed that the venue was not proven. A.B. Robertson, a deputy sheriff, testified that he was operating a filling station near Highway 65, a short distance from Sedalia, Pettis County, Missouri; that he saw appellant just as he was pulling off of the slab near his place of business. Appellant was later arrested at this place and lodged in jail. This was sufficient to sustain a finding that the venue of the alleged crime was in Pettis County, Missouri. [State v. Sorrells, 50 S.W. (2d) l.c. 1019 (2-4) and cases there cited.]

[2] It is also asserted that the State failed to prove that appellant operated an automobile on a highway as charged, or that appellant was at the time intoxicated. Witness Robertson testified that a few minutes after appellant had driven off of the slab he received a complaint from some source about appellant; that thereupon he went to appellant's car and found him sitting behind the steering-wheel in a stupor; that when he opened the door of the car appellant nearly fell out. Robertson was unable to awaken appellant. There was a strong odor of liquor about the car and much evidence that appellant had vomited. Two witnesses testified that appellant was unable to walk or stand without aid. In his own behalf appellant testified, when cross-examined, as follows:

"MR. SALVETER: `But you state you were not intoxicated in any way out there when they arrested you?' A. `When I was arrested, why yes, more or less, but I wasn't when I stopped. I seen I was going to get drunk or sick, that is why I stopped, to keep from driving.'

"Q. `Were you drunk when they arrested you?' A. `I was awfully sick, I don't know whether I was drunk.'"

According to defendant's own statements he had been drinking and indirectly admitted that he might have been rather drunk. The jury evidently did not believe that appellant, within a few minutes, could have passed from a sober state to a state of intoxication to such an extent that he was unable to walk or stand. The evidence was ample from which the jury could find that appellant was intoxicated while driving upon the highway with his car. [State v. Griffin, 320 Mo. 288, 6 S.W. (2d) 866.] The assignments of error pertaining to the sufficiency of the evidence are ruled against appellant.

[3] Appellant urges that at his request the trial court should have declared a mistrial for improper statements made by the prosecutor during the opening statement to the jury. The statements complained of are that the evidence would show that there were two gallon jugs of whiskey in appellant's car at the time he was arrested and that appellant tried to sell the whiskey to the officers who arrested him. The trial court overruled appellant's objection to the statement with reference to the two jugs of whiskey. The objection to the statement of the attempted sale of whiskey to the officers was sustained with the admonition that the jury would get that out of their minds. The request to discharge the jury was overruled.

The trial court was right in ruling that the presence of the whiskey in the car was competent evidence in this case. It tended to prove that the means of becoming intoxicated were afforded. This identical question was before this court and decided against appellant's contention in State v. Hatcher, 303 Mo. l.c. 24, 25, 259 S.W. 467.

In the oral argument, attorney for appellant charged that the statement with reference to the attempted sale of the whiskey to the officers was maliciously made by the prosecutor with intent to prejudice the jury against appellant. We do not think the record justifies this accusation. Evidence of the conduct of appellant at the time he was arrested, which would tend to prove that he was intoxicated, was competent. The use of whiskey has various effects upon the conduct of man, as was well said by LAMM, C.J., in Donaldson v. Donaldson, 249 Mo. 288, 155 S.W. l.c. 794.

"To theorize on the effect of the use of whisky on the will power of men generally depends too much on the extent of the use; the individual man (and, it may be, the quality of the liquor) to be of value in deciding this case. The case cannot be permitted to break on a philosophical view of some moot point in physiology or psychology. Peradventure drinking makes some men surly, ugly, unaccommodating, and obstinate; some mellow, merry, and yielding; some vivacious and witty; some stupid and sodden; and, since the days of Noah to this very day, all men the worse off in the long run. Proverbs, xxiii, 29, 30, 31, 32, q.v."

See, also, State v. Griffin, supra. So the prosecuting attorney in this case may have thought (and the thought may have had a good foundation) that defendant was so drunk that he considered it would be a good joke if he sold the whiskey to the officers. Discharging a jury and declaring a mistrial for improper remarks or statements made by attorneys during the progress of a trial rests largely in the discretion of the trial court. [Rockenstein v. Rogers, 31 S.W. (2d) 792, 326 Mo. 468; Kamer v. Mo., Kan. & Tex. Ry. Co., 32 S.W. (2d) l.c. 1084 (17, 18), 326 Mo. 792.] In this case the trial court sustained appellant's objection and instructed the jury to disregard the statement. Under the circumstances the action of the trial court in refusing to discharge the jury and declare a mistrial was proper.

[4] It is also claimed that the court erred in permitting the State to introduce in evidence the jugs of whiskey found in appellant's car. The cases of State v. Aurentz, 263 S.W. 178, and State v. Miller, 329 Mo. 179, 44 S.W. (2d) 15, are cited to sustain appellant's contention. These two cases are not in point. In the Aurentz case a bottle of whiskey, found in appellant's car one hour after appellant had left the scene of a homicide with which he was charged, was admitted in evidence. The admission of this evidence was...