The State v. Brown

• Citation: 296 S.W. 125,317 Mo. 361
• Decision Date: 03 June 1927
• Docket Number: 27892
• Parties: The State v. Martin Brown, Appellant
• Court: Missouri Supreme Court

296 S.W. 125

317 Mo. 361

The State v. Martin Brown, Appellant

No. 27892

Supreme Court of Missouri

June 3, 1927

Appeal from Cass Circuit Court; Hon. Ewing Cockrell, Judge.

Reversed and remanded.

Redick O'Bryan and David P. Janes for appellant.

(1) The information is bad in that it joins two or more separate and distinct offenses. The crime of transporting corn whiskey is a felony and each of the crimes of selling corn whiskey were felonies. Each crime was committed on separate days, and in no way was one corollary to the other and neither of said crimes grew out of the same transaction. State v Daubert, 42 Mo. 245; State v. Christian, 253 Mo. 394; State v. Young, 183 S.W. 307; State v Link, 286 S.W. 14. (2) The court erred in not admitting evidence offered by the defendant to sustain the issues in that part of the motion to quash the information, to show that he had not been accorded a preliminary examination on counts 2, 3, 4 and 5. State v. Langford, 240 S.W 168. (3) The court erred in overruling the defendant's motion to quash the information. This assignment of error is covered in the citation in the first assignment above. (4) The court erred in failing to instruct the jury on counts 2, 3, 4 and 5 and properly withdrawing from their consideration the evidence admitted as to said counts. (5) The court erred in giving Instruction 6, in that said instruction misled and confused the jury. This instruction does not tell the jury that in arriving at their verdict on count one, the evidence introduced on the other counts is withdrawn from their consideration. (6) The court erred in failing to instruct the jury upon all the questions of law, as requested by the defendant at the close of all the evidence in the case. Sec. 4025, R. S. 1919.

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

(1) The trial court did not commit reversible error in overruling defendant's motion to quash on the ground that two separate and distinct felonies were joined in the same information. Inasmuch as the case was submitted to the jury on only one count and defendant was convicted on only one count, he has not been injured. State v. Cannon, 232 Mo. 205, 213; State v. Sharpless, 212 Mo. 203; State v. Morris, 263 Mo. 339, 356. (2) The court committed no error by refusing the evidence offered by defendant on his motion to quash to show that he had not been accorded a preliminary examination on counts 2, 3, 4, and 5. Oral evidence is inadmissible to prove a fact of record, where it is not shown that the record is missing. State v. Rodman, 173 Mo. 681; State v. Daugherty, 106 Mo. 182; State v. Shirley, 233 Mo. 335; State v. Wicker, 222 S.W. 1014; State ex rel. Stuart v. Maloney, 113 Mo. 367. (3) State's instruction number six is proper. It told the jury that since the state had elected to submit the case on the transportation charge they were to have nothing to do with the counts charging the sale of liquor. The defendant's objection that the court erred because it did not tell the jury the evidence introduced on the counts charging the sale of liquor was withdrawn is untenable. The jury was told the same thing in different words.

OPINION

White, J.

Information in five counts was filed in the Circuit Court of Johnson County, charging the defendant with violation of the prohibition law. The five counts charged: the first, unlawful transportation of corn whiskey, May 26, 1925; the second, unlawful selling of corn whiskey, December 22, 1924; the third, unlawful selling December 26, 1924; the fourth, unlawful selling December 29, 1924; and, the fifth, unlawful selling January 5, 1925.

Upon application of defendant, change of venue was awarded to Cass County, where trial was had October 29, 1925. At the close of the State's evidence the court sustained defendant's motion to compel the State to elect upon which count he would prosecute. The State elected to submit the case on the first count. Thereupon defendant introduced evidence, the case was submitted to the jury, and verdict returned finding the defendant guilty as charged and assessing his punishment at five years' imprisonment in the penitentiary. Judgment followed, from which he appealed.

The Sheriff of Johnson County, Mason Lane, witness for the State, testified that he attempted to arrest the defendant May 26, 1925. He drove to a store at Robbins, about fourteen miles north of Warrensburg. While standing on the porch of the store he saw the defendant driving down the road. He walked out in the centre of the road and ordered defendant to halt. Instead of stopping, defendant fed the gas and went on. The sheriff was obliged to step out of the way. After defendant passed, the sheriff saw in the back end of his car something which seemed to fill it, covered with quilts. The sheriff fired a few shots at the car, then got in his own car and pursued the defendant for a distance of a half mile to three-quarters of a mile until he lost sight of defendant near a patch of timber. He drove on to Warrensburg where he found the defendant in the custody of a deputy sheriff. At that time there was nothing in the rear of defendant's car excepting the quilts. The sheriff went back along the road and traced the way the defendant had come by tracks in a corn field where he found forty gallons of corn whisky, five six-gallon jars, and one ten-gallon jar. Several witnesses testified to seeing the sheriff pursue Brown, Brown pass into the field, and to the tracing of Brown's car by the tracks it made to the place where the whisky was found. There is no claim that a case was not made out for transporting corn whisky on that day, May 26, 1925.

I. Before the trial the defendant filed a motion to quash the information on several grounds. The court overruled the motion, and error is assigned to that ruling.

It is claimed that the first count of the information is indefinite and uncertain, and does not apprise the defendant of the crime of which he stands charged. It is as follows:

"Nick M. Bradley, Prosecuting Attorney within and for the County of Johnson, in the State of Missouri, now here in court, on the behalf of the State of Missouri informs the court under his oath of office: That Mart Brown at the County of Johnson, State of Missouri, on the 26th day of May, 1925, did then and there unlawfully and feloniously transport certain intoxicating liquor, to-wit: Forty gallons of corn whiskey; that the transportation of said intoxicating liquor was then and there prohibited and unlawful; against the peace and dignity of the State."

It fails to allege that defendant was transporting intoxicating liquor from any place to any place. Section 19 of the Act of 1923, defines transportation as conveying intoxicating liquor "from place to place." Appellant's counsel seems to interpret that expression to mean that there must be some definite shipping point and some definite destination. In the commercial world, when goods are shipped from one person to another, usually there is a consignor, a consignee, and a carrier. The qualifying words in Section 19, make it an offense to carry the liquor in any container or receptacle of whatsoever kind or character, and by whatever means used, except carrying on the person. There is no limit as to the purpose of the transportation, nor as to the parties interested in it. It includes transportation for the carrier's own purpose. It does not matter where the transportation begins nor where it ends; it is the act of carrying that constitutes the offense. Neither destination nor distance is important.

The information is not open to that objection.

II. The motion to quash complains that the defendant was denied preliminary hearing on the offenses charged in counts 2, 3, 4, and 5, and the court refused to hear evidence showing there was no preliminary hearing on those counts. Since the State elected to proceed on the first count, abandoned the remaining four counts, and the verdict was on the first count only, whatever the defendant's rights were in respect to a preliminary hearing, he was not harmed by the ruling.

III. A further ground in the motion to quash was that two or more separate offenses were joined in separate counts in one information. The defendant could not be convicted of two separate and distinct felonies, nor properly be tried for them at the same time. That each of the five counts of the information charged a separate and distinct offense is apparent; each offense is put upon a different date. Transportation is a distinct and different offense from selling liquor. One might be guilty of both offenses, and although they were in connection with the same identical liquor he could be separately tried and convicted for each offense. [State v. Link, 286 S.W. 12.] Some statutes permit combining different offenses in one indictment or information in the same or different counts. Aside from those statutory exceptions the general rule is that a defendant may be charged in two or more counts in the same information and tried on all of them if the same offense is charged to have been committed in different ways, or if different offenses charged arose out of the same transaction, and were so...