Stave v. Flory

• Decision Date: 14 February 1927
• Docket Number: No. 15849.,15849.
• Citation: 290 S.W. 1026
• Parties: STATE v. FLORY.
• Court: Missouri Court of Appeals

290 S.W. 1026

STATE v. FLORY.

No. 15849.

Kansas City Court of Appeals. Missouri.

February 14, 1927.

Appeal from Circuit Court, Livingston County; John L. Schmitz, Judge.

"Not to be officially published."

Leo Flory was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Hicklin & Reed, of Chillicothe, for appellant.

Don Chapman, Pros. Atty., of Chillicothe, for the State.

ARNOLD, J.

This is an appeal from a verdict of guilty, carrying a fine of $300, for the alleged unlawful possession of intoxicating liquor.

The action was instituted by the prosecuting attorney of Livingston county, Mo., by filing in the circuit court of said county on April 10, 1925, an information charging:

"* * * That Leo Flory, on or about the 9th day of April A. D. 1925, at the said county of Livingston and state of Missouri, did then and there unlawfully have in his possession intoxicating liquor, to wit, 3 pints of whisky, the possession of which was then and there unlawful and prohibited by law, against the peace and dignity of the state."

Defendant was formally arraigned, and a plea of not guilty was entered; bond was fixed at $1,000; and, on defendant's failure to furnish the required bond, he was remanded to the custody of the sheriff; and on the following day, to wit, April n, 1925, defendant executed a bond, with approved surety, in the said sum for his appearance at the September term, 1925, of the circuit court.

The cause was tried to a jury on September 17, 1925, resulting in a verdict of guilty and a fine of $300 assessed by the jury. Judgment was entered accordingly. A timely motion for a new trial was overruled, and sentence was pronounced in accordance with the verdict. Defendant appeals.

The record discloses that on April 9, 1925, at about 11:30 p. m., the sheriff of Livingston county arrested defendant while the latter was in his automobile, parked on one of the streets of Chillicothe, in said county. When the sheriff approached the said car, defendant drew two bottles out of his pocket, and broke them upon the running board of the car. The contents thereof, which the sheriff identified as corn whisky, together with the broken glass, fell upon the running board. Defendant was placed under arrest, and a search of his car, made by the sheriff at the time, disclosed another bottle containing corn whisky hidden under the cushion of the rear seat.

Defendant was taken to the office of the prosecuting attorney, who had been summoned there by telephone, and the defendant was there questioned about the possession of the whisky. The sheriff testified that he also called his deputy sheriff, Lewis Mast, and that in about 40 to 42 minutes the sheriff and Mast returned to the parked car, and found it in exactly the same position and surroundings as at the time of the arrest; that they found corn whisky on the running board of defendant's car, and the car was standing in such position that the whisky did not run off of the running board; that he tasted and smelled the liquid; and that it was corn whisky. He further stated he found alongside the running board the necks o the two bottles which had been broken. These were presented in evidence by the witness. He testified he found the bottle which he had before discovered still under the cushion of the rear seat. This he took with him and turned over to the prosecuting attorney. Witness also identified the contents of this last-named bottle as corn whisky.

At this stage of the proceeding defendant moved to strike out all the evidence in relation to this bottle, for the reason that the time from the arrest until the...