State v. Smith

• Decision Date: 31 December 1932
• Docket Number: No. 32367.,32367.
• Citation: 56 S.W.2d 39
• Parties: THE STATE v. LESLIE D. SMITH, Appellant.
• Court: Missouri Supreme Court

56 S.W.2d 39

THE STATE v. LESLIE D. SMITH, Appellant.

No. 32367.

Supreme Court of Missouri, Division 2.

December 31, 1932.

Appeal from Audrain Circuit Court. — Hon. William C. Hughes, Judge.

AFFIRMED.

Irwin & Bushman and C.A. Barnes for appellant.

(1) The information should have been quashed as Section 4517, Revised Statutes 1929, upon which it is bottomed, violates Section 28, Article IV of the Constitution of Missouri in that the offense described in said section is not clearly expressed in the title of the Act of which it is a part, and because the Act itself contains more than one subject. State v. Crites, 277 Mo. 201; State v. Walker, 34 S.W. (2d) 132; State ex. inf. Attorney-General v. Hedrick, 294 Mo. 89; State v. Sloan, 258 Mo. 313; State ex rel. v. Hackmann, 292 Mo. 32; State v. Rawlings, 232 Mo. 557; State v. Fulks, 207 Mo. 40; State v. Burgdoerfer, 107 Mo. 30; State v. Parker Dist. Co., 237 Mo. 103; O'Brien v. Ash, 169 Mo. 299; Shively v. Lankford, 174 Mo. 544; Williams v. Railroad, 233 Mo. 676. (2) The information is insufficient in that it not only fails to charge, according to the first proviso of the statute, that the liquor was not being transported for personal use, but also fails to charge that it was for sale in violation of law. The proviso is descriptive of the offense and qualifies the language defining the offense. State v. DeGroat, 259 Mo. 375; State v. Meek, 70 Mo. 357; State v. Mikel, 278 S.W. 671; State v. Calvin, 284 Mo. 199; Kelly's Crim. Law & Procd. (4 Ed.) sec. 193, p. 149. (3) The demurrer to the evidence should have been sustained for unless the record contains substantial evidence tending to show defendant's guilt, it becomes the plain duty of this court on appeal to reverse the cause and discharge defendant from custody. State v. Brown, 290 Mo. 182; State v. Kelsay, 228 S.W. 759; State v. Wheaton, 221 S.W. 26. The demurrer to evidence should have been sustained for the reason that the information does not charge an offense in that the Section 4517 violates Section 28, Article IV of the Constitution of Missouri and Section 22, Article II of the Constitution of Missouri. (See cases under Point 1.) (4) Instruction 2 given in behalf of the State was erroneous because it deprived the defendant of the presumption of innocence and authorized a conviction without requiring the jury to consider all of the evidence and circumstances in the case. State v. Christian, 253 Mo. 397; State v. Harper, 149 Mo. 524; State v. Nueslein, 25 Mo. 124. (5) The giving of Instruction 4 was unlawful in that it assumes facts not placed in evidence. To justify the giving of an instruction there must be substantial evidence to support the hypothesis of the instruction. State v. Douglas, 278 S.W. 1027; State v. Bunton, 285 S.W. 100; Kulin v. Sealy, 257 Mo. 527; State v. Elsey, 201 Mo. 571; State v. Martin, 259 S.W. 434; State v. Adams, 274 S.W. 23. (6) The certified copy of certificate of title from the Secretary of State's office was secondary evidence and its introduction in evidence violated the rule that one party cannot give secondary evidence of a written instrument without first making proper showing. State v. Tucker, 234 Mo. 554; State v. Martin, 229 Mo. 620; State v. Lentz, 184 Mo. 223. (7) Argument by the prosecuting attorney to the jury of matters and things entirely outside the record deprived defendant of a fair trial and is ground for reversal. State v. Guerringer, 265 Mo. 419; State v. Ferguson, 152 Mo. 100; State v. Wigger, 196 Mo. 103; State v. Hess, 240 Mo. 161.

Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.

(1) The court properly refused to quash the information in this cause. Section 4517, Revised Statutes 1929, in no way violates the Constitution of Missouri. The carrying of a revolver in an automobile while transporting illegally manufactured liquor, is incidental to the enforcement of the prohibition act. The title of an act passed by the Legislature must only serve as a clear and conclusive indicator of the purpose of the act. It is sufficient if the title does not mislead as to the chief topic of the act, and when it sufficiently indicates the substantial purpose of the act, it is not violative of the Constitution. Neither is it necessary that the title of an act enter into details. Thomas v. Buchanan County, 51 S.W. (2d) 98; State v. Ward, 40 S.W. (2d) 1076; State ex rel. Dickason v. County Court, 128 Mo. 441; State v. Sloan, 258 Mo. 313; State ex rel. v. Roach, 258 Mo. 559; Coca-Cola Bottling Co. v. Mosby, 289 Mo. 472; State ex inf. Barrett v. Imhoff, 291 Mo. 619; State v. Mullinix, 301 Mo. 390. (a) A negative averment is not necessary in an information where the proviso or exception is a separate and distinct part of the statute distinctive from the part which describes the offense. If the defendant comes within the terms of the exception that fact must be shown in his defense. State v. Williams, 296 S.W. 156; State v. Brown, 306 Mo. 536; State v. Saak, 269 Mo. 234; State v. Smith, 233 Mo. 254. (2) When the evidence tends to prove every material fact necessary to a conviction the weight of the evidence is for the jury. Whether the evidence is sufficient upon which to submit the case is a question of law for the court. State v. Baumann, 1 S.W. (2d) 156; State v. Zoller, 1 S.W. (2d) 142; State v. Pinkard, 300 S.W. 752; State v. Jackson, 283 Mo. 24; State v. Concelia, 250 Mo. 424. (a) In deciding whether the evidence is sufficient to support a verdict this court must accept as true the State's evidence and every reasonable inference to be drawn thereform. State v. Richardson, 36 S.W. (2d) 946; State v. Williams, 22 S.W. (2d) 649; State v. Harris, 22 S.W. (2d) 806. (3) Instruction 2 follows the form approved by this court for the first time in State v. Neueslin, 25 Mo. 124. It also includes the words "arising from the evidence in the case" which was an issue in State v. Christian, 253 Mo. 397. Granting for the sake of argument that the entire instruction is erroneous, the defendant's given Instruction 5, page 122 bill of exceptions, sets out everything objected to by the defendant, is most favorable to him and fully explains reasonable doubt and presumption of innocence. State v. Nasello, 30 S.W. (2d) 139; State v. Emma, 26 S.W. (2d) 785; State v. Howard, 23 S.W. (2d) 15.

WHITE, P.J.

Information in two counts was filed in the Circuit Court of Callaway County, the first count charging defendant and Jack Wright with transportation of corn whisky, and the second charging that while in charge of a certain Lincoln automobile in which intoxicating liquors were being carried they carried three loaded automatic pistols.

Leslie Smith applied for and was granted a severance. On May 29, 1931, the State dismissed as to the first count and defendant was found guilty on the second count, and his punishment assessed at imprisonment for five years in the penitentiary. Thereafter a motion for new trial was sustained and the prosecutor filed an amended information. A change of venue was awarded to Audrain County where a jury found defendant guilty and assessed his punishment at two years in the penitentiary. From the judgment following that verdict he appealed.

The evidence offered by the State tends to show that the Sheriff of Callaway County, J.C. Owen, on or about April 10, 1931, received information that a Lincoln coupe bearing a Texas license had come into the city of Fulton and contained moonshine whisky. The sheriff and his deputy found such a car parked on Sixth Street, Fulton, and in the car were Jack Wright and a young woman, Sue Holt. He arrested them. Immediately a search warrant was obtained and automobile searched. They found five gallons of alcohol and eight flasks of whisky concealed in the car; also, three automatic pistols, two of them loaded. The defendant Leslie Smith was not in or near the car at the time. The officers soon found him and he attempted to escape. They chased him and finally put him under arrest.

There was considerable evidence to show that during the afternoon the defendant had been in the coupe behind the steering wheel. Jack Wright, his codefendant, testified for the State that he and the defendant had an interest in the whisky found in the car; that when they came into Fulton the defendant, Leslie D. Smith, was driving the car. The State produced in evidence the certificate of ownership of this particular Lincoln coupe issued to L.D. Smith. It was also shown by the State that the defendant's mother later brought replevin suit against the officer for possession of the car. All this evidence in relation to the ownership was objected to by the defendant. The defendant did not testify.

[1] I. Appellant asserts that Section 4517, Revised Statutes 1929, under which he was convicted, is unconstitutional. The section, enacted in 1923, Acts of 1923, page 236, declares it is a felony for any person while in charge of or a passenger on any automobile or other conveyance upon which intoxicating liquor is carried, to carry "on his person or in, or about" the vehicle any firearms. The appellant claims that it is in violation of Section 28, Article IV of the Constitution; that the title to the act contains more than one subject, and that the offense of carrying firearms is not clearly expressed in the title. For convenience in analyzing this title we number its clauses and separate them into paragraphs 1, 2, 3 and 4, as follows:

(1) "An ACT to provide for the exercise of police powers of the state, by and through prohibiting the manufacture, possession, transportation, sale and disposition of intoxicating liquors;"

(2) "defining soft drink bars; providing for the granting of permits to duly licensed and reputable physicians to prescribe ethyl alcohol and wine for medical purposes; the issuance of permits to registered pharmacists or druggists to fill such prescriptions;"

(3) "prohibiting the...