State v. West

• Decision Date: 19 February 1930
• Docket Number: 30139
• Citation: 24 S.W.2d 1005,324 Mo. 710
• Parties: The State v. Ellen West, Appellant
• Court: Missouri Supreme Court

24 S.W.2d 1005

324 Mo. 710

The State v. Ellen West, Appellant

No. 30139

Supreme Court of Missouri

February 19, 1930

Appeal from Pemiscot Circuit Court; Hon. Henry C. Riley Judge.

Reversed.

Von Mayes for appellant.

(1) The defendant was charged with possessing the twelve one-half pints of liquor found in the table in the kitchen of the restaurant of the husband of the defendant and there was no substantial evidence introduced by the State to prove that the defendant was either in possession of said liquor or in possession of the building in which same was found, which in law was presumed to be in possession of her husband. (2) Had the liquor been found in the possession of defendant she would not be guilty of the charge of possessing intoxicating liquor, because her husband was present and there was no testimony offered upon the part of the State to show that she was acting independently of any coercion or incitement of her said husband. Kelley's Criminal Law (4 Ed.), sec. 17; Crocker v. State (Tenn.), 251 S.W. 914; Wampler v. Norton (Va.), 113 S.E. 733; State v. Halbrook (Mo.), 279 S.W. 395. (3) The wife may be in joint possession with her husband and they both may be prosecuted but the State must prove the possession of the wife and that her possession was independent of any coercion or incitement of the husband. There was no evidence she was in possession of the liquor, joint or otherwise, nor that she was in possession of the premises, joint or otherwise, but there was proof to the contrary. Ward v. State (Ark.), 243 S.W. 857; People v. Berridge, 212 Mich. 576, 180 N.W. 381. In the absence of proof to the contrary the husband is presumed to be in charge of the premises. Wampler v Norton (Va.), 113 S.E. 733.

Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.

There was ample evidence on which to base the verdict. There being substantial evidence to the effect that defendant operated and had control of the restaurant and that the moonshine whiskey was in her possession, the case was properly submitted to the jury. State v. Scheeler, 300 S.W. 318; State v. Hagen, 299 S.W. 83; State v. Chambers, 286 S.W. 744; State v. Briggs, 281 S.W. 107.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

In an information filed in the Circuit Court of Pemiscot County by the prosecuting attorney, defendant was charged with the unlawful possession of intoxicating liquor to-wit, moonshine whiskey. The jury returned a verdict of guilty, and assessed her punishment at a fine of two hundred dollars. Defendant appealed.

The cause is here because of a constitutional question timely raised and kept alive. The evidence upon the part of the State warrants the finding that defendant, a negress, was the wife of Leroy West, a negro. On June 30, 1928, by virtue of a search warrant, Constable Gaither, Deputy Constable Morley and Policeman Dover searched a certain building in Caruthersville. In the building defendant's husband ran a restaurant. The officers entered the restaurant and walked to the kitchen. In the kitchen on a table was a dish pan, in which defendant was washing dishes. The officer shook the table, whereupon he heard bottles rattle. He inquired, "How do you get into that?" She answered, "I don't know." Upon the officer making an investigation, defendant told him to go into the next room and reach through a hole in the wall. The officer, failing to find a hole, returned and said: "I know that's in there and I will get in there if I have to break the table." A dish pan and oil cloth were on the table. Defendant removed them, pulled out a plank and drew out an empty bottle, saying, "That's all there is." The officers found in the table twelve one-half pints of moonshine whiskey. Thereupon it appears that Leroy West was immediately arrested. Defendant was arrested a few days later.

The evidence further tends to show by the statements of the officers that Leroy West and defendant ran a restaurant and pool room in Caruthersville in separate buildings some distance apart. Leroy attended to the pool room and spent most of his time there. The whiskey was found in the restaurant, in which defendant worked. The officer would not say defendant rented the place. He merely saw her there caring for the business. He did not know who ran the building. One officer said Leroy West ran the two places of business. He was at the pool room most of the time. Leroy was in the restaurant when it was searched.

Defendant's evidence tends to show that Leroy West placed the whiskey there. The license was issued to Leroy and he rented the building from a Mr. Thweatt. Leroy ran the restaurant. Defendant was occasionally there. She resided about a block and a half from the restaurant. She had charge of a rooming house. She went to the restaurant for refreshment. She had been there only thirty or forty minutes when the officers appeared.

We think the State's evidence tends to show that Leroy West husband of defendant, owned and operated the restaurant in which the twelve half-pints of moonshine whiskey were discovered. A witness for the State testified that Leroy ran the two places of business, to-wit, the pool room and the restaurant. It is true the one witness stated that Leroy and defendant ran the restaurant, but his statement was nothing more than a conclusion inferred from the fact that he observed her working in the restaurant, for he knew nothing...