State v. Smith

• Decision Date: 12 December 1927
• Docket Number: No. 28263.,28263.
• Citation: 300 S.W. 1081
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

300 S.W. 1081

STATE v. SMITH.

No. 28263.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Appeal from Circuit Court, Pemiscot County; E. P. Dorris, Judge.

Roy Smith was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

Sharon J. Pate and Von Mayes, both of Caruthersville, for appellant.

North T. Gentry, Atty. Gen., and H. O. Harrawood, Sp. Asst. Atty. Gen., for the State.

WHITE, P. J.

The defendant was charged by information filed in the circuit court of Pemiscot county with feloniously transporting intoxicating liquor, to wit, moonshine, corn whisky, and ethyl alcohol. On a trial, July 1, 1926, at the close of the evidence offered by the state, the defendant asked an instruction in the nature of a demurrer to the evidence. It was overruled; the defendant elected to stand upon his demurrer and offered no evidence. The case was then submitted to the jury, which returned a verdict finding the defendant guilty as charged in the information, assessing his punishment at 2 years in the State Penitentiary. The court rendered judgment upon the verdict, and the defendant appealed.

I. The principal point relied upon by the defendant for a reversal is that the state failed to make out a case showing that the defendant transported any liquor. The state offered as a witness Scott Carey, then deputy constable of Little Prairie township, in Pemiscot county. April 1, 1925, he was working on his farm which is situated in what is known as the "loop" of two levees. He said that he was acquainted with John Janes, Roy Smith, and Ray Edwards. The facts relating to the transportation are best described in his language:

"Well, the first I saw was Mr. Smith and Mr. Janes come over the levee in a Buick Six roadster and stopped at the bottom of the levee on the inside of my field and got out, looking around the engine and around the car, and immediately, or almost immediately, a Ford coupe drove across the levee and stopped by the side of the Buick on the right or river side, and a fellow, Ray Edwards, got out of the Ford. I was about 300 yards up there raking in the garden at that time, and I could see them cross back and forth, and finally I decided I would go and see what was going on, and when about half way between my house and the cars I saw them handling something back and forth, and I drove up to the right of them in my car and got out and asked what they were doing, and they closed theirs cars down and locked the back end. No one answered me, but started looking at each other, and I told Ray Edwards to open his car, that I wanted to look in it, and he said

I couldn't look in it without a search warrant, and we had a few words about the search warrant, and I told them that I would put them under arrest, and then I put them all in the Buick and brought them in."

After the deputy constable got to town he caused search warrants to be issued and armed with those warrants, with the assistance of the sheriff, J. H. Smith, he searched both the Buick and the Ford. In the Buick they found 10 gallons of alcohol, 1½ or 2 gallons of moonshine whisky which had been colored, and in the Ford they found 25 or 30 gallons of alcohol, and perhaps some whisky. There was no objection to the testimony of the sheriff and other witnesses that the whisky which they found in the Buick was corn whisky.

On cross-examination Carey, in describing the movements of the men about the two cars before he arrested them, testified thus:

"Q. You don't know when it [the whisky] was put in there, do you? A. Part of it was Put in on my place and took some from it and put in the other car—they was transferring from one car to another.

"Q. You don't know which car they were taking it from? A. I don't know.

"Q. You don't know that the whisky was in this car when it went over the levee? A. I can't say that."

Then in redirect examination this occurred:

"Q. You do know that this whisky was in one of these cars when it come over the levee? A. Yes, sir."

If the whisky was in the Buick when it was driven across the levee, it was transported by the occupants of the car. If it was put into the car after it stopped and before the arrest, it was not transported.

The presumption of the continued existence of a proved fact does not run backward. 22 C. J. 92. But circumstances may be such as to warrant an inference that an established fact must have existed for a definite period in the past. Proof that the whisky was in the Buick when it was searched does not, of itself, raise a presumption that it was there at any previous time, but the state did not have to rely upon that fact alone. That it could not have been put in after the arrest, and that it was in when the arrest occurred, is beyond question. There is no direct evidence that the...