State v. Wester

• Decision Date: 04 June 1929
• Docket Number: No. 29102.,29102.
• Parties: STATE v. WESTER.
• Court: Missouri Supreme Court

18 S.W.2d 28

STATE v. WESTER.

No. 29102.

Supreme Court of Missouri, Division No. 2.

June 4, 1929.

Appeal from Circuit Court, Shelby County; V. L. Drain, Judge.

Roy Wester was convicted of driving an automobile upon a public highway while intoxicated, and he appeals. Affirmed.

Lane B. Henderson, of Monticello, and James C. Dorain, of Edina, for appellant.

Stratton Shartel, Atty. Gen. (H. H. Blair, of Jefferson City, of counsel), for the State.

HENWOOD, C.

By an information filed in the circuit court of Shelby county, defendant was charged with driving an automobile on a public highway while intoxicated. Upon trial, the jury found him guilty and assessed his punishment at imprisonment in the penitentiary for two years. He was sentenced accordingly, and appealed.

In support of the state's case in chief, Les Broughton testified that, while driving his automobile along a public highway in Shelby county between 5 and 6 o'clock in the morning of August 20, 1927, he found defendant asleep in an automobile "sitting in the middle of the road." He shook defendant and tried to arouse him, but was unable to do so. Defendant "was just the same as a drunk man. Just thoroughly limber as a rag." Defendant was drunk, and his breath "smelled like liquor." He drove on to Shelbyville and reported the incident to the deputy sheriff. Upon cross-examination, he admitted that there was an unfriendly feeling between him and defendant's brother, Ferd Wester. He also admitted that, after defendant's arrest, he had a conversation with defendant's nephew, Lee Wester, in which he said he found defendant asleep in his car and tried to "wake him up," but denied that he told Lee Wester he searched defendant's automobile and found no liquor.

S. R. Orr, the sheriff of Shelby county, testified that, about 6 o'clock in the morning of the day in question, he met defendant driving toward Shelbyville, "about four miles out of town," and, after allowing defendant to pass him, turned his car around and followed defendant two or three miles. Defendant was driving his automobile in a "zig-zag" manner, and "come pretty near ditching it." When he was about to overtake defendant's car, defendant stopped, got out of his car, and "set his jug" down by the right front wheel. He then arrested defendant and took possession of the jug. Defendant was drunk, "staggered around," and "was talking at random." He smelled liquor on defendant's breath.

Defendant, testifying in his own behalf, said he was 37 years of age. In the afternoon of the day before his arrest he drove to the home of his brother, Ferd Wester, near Oak Dale, and went fishing with his brother from 4 o'clock until dark. That evening, from about 10:30 until 11:30, he and his brother visited a dance at Oak Dale. He then had trouble with his car and was not able to get it into running order until about 2 o'clock a. m. His brother and nephew helped him in working on the car. About a mile and a half from his brother's house, he had trouble with his car again, and, after working on it for about an hour and a half and failing to get it to run, "crawled up in the seat and went to sleep." He saw Les Broughton pass about "sun-up," driving toward Shelbyville, and also saw him pass, going in the opposite direction, about an hour later. Broughton did not stop either time. He was cranking his car when Broughton passed the second time. After getting his car started, he passed the sheriff and deputy sheriff. About a quarter of a mile from the point where he passed the officers, he "had tire trouble; blow out," and it was then the sheriff arrested him. He was not drunk. He did not drink any intoxicating liquor during the afternoon nor the night before his arrest, and had no jug in his car. He was "found guilty of possession of some liquor" in Shelby county some time prior to the trial of this case, and in 1913 "had some trouble in Bethel," in Shelby county, for which he was prosecuted and convicted. Upon cross-examination, he said he saw the jug in the road "before he got to it," and that he "drove right up beside it and stopped."

Defendant's testimony was fully corroborated by that of his brother and nephew, Ferd Wester and Lee Wester, as to everything that happened during his visit at his brother's home. Both said that the trouble with his car delayed defendant in starting to his home until about 2 o'clock in the morning. They also said that, while there, he showed no signs of intoxication, did not drink any intoxicating liquor, and did not have any intoxicating liquor on his person or in his car. Lee Wester further testified that, after defendant's arrest, he had a conversation with Les Broughton, in which Broughton said he searched defendant's car at the time in question, and "did not find any liquor in it."

Several witnesses testified that defendant's general reputation for truth and veracity was good, and that, since the time of his conviction for illegal possession of liquor, his general reputation for law-abiding citizenship had been good.

In rebuttal for the state, the sheriff said that there was about a gallon of wine in the jug which he saw defendant take out of his car; that the stopper was not in the jug; and that he found the stopper on the floor of defendant's car.

Charles Dimwoodie testified that he saw defendant at the dance, at Oak Dale, on the night...