The State v. Bishop

• Decision Date: 23 June 1927
• Docket Number: 27893
• Citation: 296 S.W. 147,317 Mo. 477
• Parties: The State v. Thomas Bishop and George Bishop, Appellants
• Court: Missouri Supreme Court

296 S.W. 147

317 Mo. 477

The State v. Thomas Bishop and George Bishop, Appellants

No. 27893

Supreme Court of Missouri

June 23, 1927

Appeal from New Madrid Circuit Court; Hon. E. P. Dorris Special Judge.

Affirmed.

Von Mayes for appellants.

(1) The information charging defendants with transporting intoxicating liquor in an automobile, the State must prove transportation in the specific manner alleged. State v Samuels, 144 Mo. 68; State v. McGrath, 228 Mo 413; State v. McConnell, 240 Mo. 269; State v. Bounds, 262 S.W. 411; 31 C. J. 748, sec. 305; State v. Stratton, 289 S.W. 568. (a) The manual handling of intoxicating liquor does not constitute unlawful transportation. Transporting upon the person is not a violation of the law. State v. Jones, 256 S.W. 542; State v. Bounds, 262 S.W. 411; State v. Breckenridge, 282 S.W. 149; Sec. 19, p. 242, Laws 1923. (b) Removal from one part of premises to another part of same premises is not transporting. Warren v. State, 250 S.W. 429; Liquor Transportation Cases, 205 S.W. 423; Cunard v. Mellon, 284 F. 890; Ready v. State, 290 S.W. 28. (2) A companion, riding in an automobile carrying intoxicating liquor, not owning or driving the car and having no interest in or control over the liquor and in no way assisting in its transportation, is not guilty of transporting intoxicating liquor. Lock v. Smith, 244 S.W. 11; Hitt v. Commonwealth, 131 Va. 752; Riojas v. State, 277 S.W. 640; State v. Helpley, 279 S.W. 701; Richardson v. State, 228 S.W. 1094; Mullins v. Commonwealth, 245 S.W. 285; State v. Stewart, 289 S.W. 934. When an offense is committed the mere presence of another is not sufficient to characterize him as a principal or accessory. 16 C. J. 132, sec. 121; State v. Orrick, 106 Mo. 111; State v. Cox, 65 Mo. 29; State v. Woolard, 111 Mo. 248. (3) The verdict is not supported by substantial evidence. There was no proof that the intoxicating liquor in question was in the automobile at the time it was in motion. State v. Roten, 266 S.W. 994; State v. Ridge, 275 S.W. 59; State v. Rutledge, 262 S.W. 718; 16 C. J. 772, sec. 1580; White v. State, 18 Ga.App. 214; State v. Crabtree, 170 Mo. 642; State v. Faulkner, 175 Mo. 546; State v. Bowman, 294 Mo. 245. (a) A prima-facie presumption will not overcome the presumption of innocence. State v. James, 133 Mo.App. 300; State v. Shelley, 166 Mo. 616. (b) Presumption of innocence is one of law and fact. Reasonable doubt has reference to the degree of proof. Underhill on Criminal Evidence, sec. 40, p. 38. (c) Presumptions of fact generally are questions of fact. They are merely the major premises of those inferences which juries are at liberty to draw, in the light of their experience as men of the world from the facts directly proved. Leighton v. Morrill, 159 Mass. 271. (4) A conviction cannot be based on mere belief of guilt. State v. Wheaton, 221 S.W. 26. (5) In a doubtful case the presumption of innocence will turn the scales in favor of the defendant. State v. Shelley, 166 Mo. 616.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) The jury found each defendant guilty but were unable to agree upon the punishment. The court assessed the punishment of each defendant. This was proper. Sec. 4048, R. S. 1919. (2) The court committed no error by overruling the defendant's demurrer; the evidence was sufficient to sustain the verdicts of guilty. State v. Helpley, 279 S.W. 701; State v. Milstead, 285 S.W. 429; State v. Bennett, 270 S.W. 295; State v. Thogmartin, 270 S.W. 313; State v. Nave, 285 S.W. 723; State v. Vesper, 289 S.W. 862; State v. Thompson, 289 S.W. 648; State v. Henke, 285 S.W. 392.

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

OPINION

HENWOOD

An information was filed in the Circuit Court of Pemiscot County charging appellants jointly with the unlawful transportation of about seven gallons of corn whiskey on or about March 6, 1925. At different terms of the court appellants alleged, first, the prejudice of the regular judge of the court against them, and later, the prejudice of the inhabitants of Pemiscot County against them. A change of venue was granted to New Madrid County, and after considerable delay appellants stood trial in that county before a jury and the regular judge of another circuit who had been duly designated to try the case as special judge. The jury found appellants guilty, but failed to agree on their punishment. The special judge assessed the punishment of each at imprisonment in the penitentiary for two years. Their motion for a new trial being overruled, they were each sentenced accordingly, and then in due time appealed.

The following facts were developed at the trial in support of the State's case. The appellant George Bishop lived in a six-room house in the northwest section of the city of Caruthersville at the junction corner of Third Street and the highway to Hayti. His father, the appellant Thomas Bishop lived eight or ten blocks away, at Sixth and Highland streets. The sheriff had been carrying a search warrant for George Bishop's house for four or five days, but had made no attempt to serve the same because of the serious sickness of George Bishop's wife. On the evening of March 6, 1925, between seven and eight o'clock, the sheriff, accompanied by one deputy and two police officers of Caruthersville, drove out Third Street by George Bishop's house, and, just as they turned to the left into the highway mentioned, they saw appellants approaching on Third Street behind them in an automobile, and saw the automobile turn in across the driveway, over the ditch, to the side of George Bishop's house. The sheriff stopped his car at the roadside, and he and the other officers ran across the rear of the premises and around the house to the automobile, two going around one way and the other two going around the other way. They found George Bishop on the ground, moving from in front of the automobile to the left side, near the driver's seat, and his father, Thomas Bishop, seated in the front seat on the right side. Between Thomas Bishop's legs they found a five-gallon glass bottle or jug filled with corn whiskey, and in the back part of the automobile or on the back seat they found two one-gallon glass bottles or jugs filled with corn whiskey. As to what happened at the crucial moment, the sheriff testified as follows: "Just driving by slowly and coming out Third Street and making the turn back on the highway to Hayti from our left. We seen their car coming up Third Street and it darted in to the side of the house, and I says, 'There they come now,' and we just run our car to the side of the road, went around the house and made the arrest." (Italics ours.)

He further testified that he stopped his car "immediately" and "about 100 feet, maybe 125 feet" from appellants, and when asked if he went around the house immediately, he said: "As fast as I could run." One of the other officers testified that it took "probably half a minute" to get around to appellants' automobile after the sheriff's car stopped. Another one of the officers said: "Don't know, but a very short time, because we jumped right out of the car and went around the back way; could not have been but a little bit." It was after dark, but there was a street light on the corner. The sheriff was driving a Dodge and the appellants a Cadillac. George Bishop was referred to by one of the officers while on the witness stand as "the young man," but neither his age nor the age of his father, Thomas Bishop, appears in the record. Nor does it appear who owned the Cadillac. As to all material facts the testimony of all four officers was to the same effect.

The appellant George Bishop was the sole and only witness for the defense. He testified, in substance, that he went over to his father's house about 7:30 or eight o'clock and while there his father told him the sheriff had a search warrant for his house, but did not give the source of the information; that he and his father then started for his house in the Cadillac, where his father was to remain with his wife while he removed his whiskey from the house before the intended search was made; that before he got to his house he saw a Dodge in front of him and thought it was the sheriff's car; that he "drove up to the crossing and into the yard," and then "stopped and got out of the car and went around in front and picked up this five-gallon of liquor and father opened the door and slid it in [italics ours] and then got the two one-gallon cans;" that then he saw the sheriff and said, "Well, here they are;" that he drove the car, and that the whiskey was his, and that his father had no interest in it. On cross-examination he said he had not transported the whiskey, but was "just fixing to transport it."

I. Several assignments of error are found in the motion for new trial. Some of the assignments, including the general complaint as to the instructions given to the jury, are too vague and indefinite to be reviewable here under the Act of 1925. [Laws 1925, p. 198; State v. Standifer, 289 S.W. 856; State v. Murrell, 289 S.W. 859; State v. Vesper, 289 S.W. 862.] Other assignments, otherwise reviewable, will be treated as abandoned, not being considered in appellants' brief. [State v. Murrell, 289 S.W. 859; State v. Kelley, 284 S.W. l. c. 803.]

II. We come now to the contention that there is no substantial evidence to support the verdicts against appellants or either of them, this being the only ground for reversal considered and urged in their brief. In briefing this proposition learned counsel for appellants has, in the main, adopted the testimony of the appellant George Bishop as representing the facts of the case, and then established by well settled authorities...