The State v. Cardwell

• Decision Date: 22 December 1925
• Docket Number: 26598
• Citation: 279 S.W. 99,312 Mo. 140
• Parties: THE STATE v. BUCK CARDWELL, Appellant
• Court: Missouri Supreme Court

279 S.W. 99

312 Mo. 140

THE STATE v. BUCK CARDWELL, Appellant

No. 26598

Supreme Court of Missouri

December 22, 1925

Motion for Rehearing Denied January 6, 1926.

Appeal from Taney Circuit Court; Hon. Fred Stewart, Judge.

Affirmed.

Robert W. Otto, Attorney-General, and James A. Potter Special Assistant Attorney-General, for respondent.

(1) The information in this case follows the language of the statute and is sufficient. State v. Gatlin, 267 S.W. 797. (2) The defendant is always entitled to a converse instruction when he requests it, unless the State's main instruction contains a clause equivalent to a converse instruction. State v. Hayes, 247 S.W. 168; State v. Jackson, 126 Mo. 521; State v. Fredericks, 136 Mo. 51; State v. Harris, 232 Mo. 317; State v. Rutherford, 152 Mo. 124; State v. Dougherty, 287 Mo. 82; State v. Johnson, 234 S.W. 794; State v. Cantrell, 234 S.W. 800; State v Majors, 237 S.W. 488. (3) The main instruction for the State which pretends to cover the whole case should ordinarily include the word, "feloniously" or words of similar meaning. State v. Reagen, 280 Mo. 60; State v. Cummings, 206 Mo. 623; State v. Rader, 262 Mo. 132; State v. Massey, 274 Mo. 589; State v. Burgess, 268 Mo. 413; State v. Reed, 140 Mo.App. 253. (4) The word "moonshine" means corn whiskey, and is not broad enough to include all kinds of intoxicating liquor. State v. Gatlin, 267 S.W. 797. (5) The word "moonshine" means liquor illegally manufactured. State v. Brown, 262 S.W. 710; State v. Combs, 273 S.W. 1037.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On April 15, 1925, a verified information was filed in the Circuit Court of Taney County, Missouri, which, without caption, signature and jurat, reads as follows:

"Comes now A. H. Blunk, Prosecuting Attorney within and for the County of Taney, in the State of Missouri, and upon the affidavit of and upon his oath of office informs the court that on or about the day of March, 1925, at and in the County of Taney and State of Missouri aforesaid, one Buck Cardwell and Coonie Hobbs, both late of the County of Taney and the State of Missouri, did then and there unlawfully, wilfully and feloniously, transport hootch, moonshine and corn whiskey, contrary to the form of the statute made and provided and against the peace and dignity of the State."

On April 20, 1925, defendants, Buck Cardwell and Coonie Hobbs, asked for a severance, which was granted, and the State elected to try defendant Buck Cardwell first. Thereafter this appellant entered a plea of not guilty and, on April 21, 1925, upon a trial before a jury, the latter returned the following verdict:

"We, the jury, find the defendant Buck Cardwell guilty as charged in the information and assess his punishment at two years in the State Penitentiary."

Motions for a new trial and in arrest of judgment were filed on April 22, 1925. Both motions were overruled, and thereafter on the same day defendant was granted allocution, judgment rendered, sentence pronounced, and an appeal granted defendant to this court.

The appellant filed no brief in this court. The evidence is short and the substance of same is correctly stated by counsel for the State, as follows:

On the day alleged in the information, defendant was seen traveling on horseback in Taney County, Missouri. He was passed by the prosecuting witness on the highway and the prosecuting witness noticed that defendant was drunk. He asked defendant where he was going and he replied he was going to Hollister, which is also in said County of Taney. The prosecuting witness at the time noticed that defendant had a jar containing liquor in his coat, tied to the horn of his saddle. Witness proceeded down the road in search of an officer and, after finding the officer, met the defendant in the road, at which time defendant was arrested and his jar, which was attached to his saddle, was seized by the officer and witness identified the liquid found in the jar to be moonshine corn whiskey.

Defendant testified in his own behalf, that he was not drunk on this occasion; he admitted he was on the road to Hollister when the officers arrested him and took the fruit jar away from him; he said nothing about the contents of the jar, but denied some other immaterial statements testified to by State's witnesses.

No brief has been filed in this court in behalf of appellant, but counsel for respondent have called attention in their brief to certain questions arising in the record which require consideration at our hands.

I. We are of the opinion that the information heretofore set out, although assailed in the motion in arrest of judgment, is sufficient as to both form and substance. [State v. Combs, 273 S.W. l. c. 1038-9; State v. Bennett, 270 S.W. 295-6; State v. Gatlin, 267 S.W. 797; State v. Brown, 304 Mo. 78, 262 S.W. l. c. 711.]

II. No demurrer to the evidence was offered by defendant at the conclusion of the State's case, or at the conclusion of the whole case. The prosecuting attorney and constable of Taney County testified, without contradiction, that on March 12, 1925, defendant was arrested in said county by said constable, and that at the time of his arrest he was transporting a fruit jar full of moonshine whiskey on a horse, and that the same was then and there wrapped in a slicker and tied to the back of his saddle. The defendant was sworn as a witness in his own behalf, and testified that he was not drunk when arrested, but did not deny that he was transporting moonshine whiskey as testified to by above witnesses when arrested. In other words, defendant was the only witness in his own behalf, and signally failed to contradict the above witnesses in regard to his transporting moonshine whiskey in said county on the date aforesaid. The State therefore made out a plain case on the merits.

III. Instruction 1, given by the court, reads as follows:

"The court instructs the jury that if you believe and find from the evidence in this case beyond a reasonable doubt that in the County of Taney and State of Missouri on or about the 12th day of March, 1925, the defendant herein, Buck Cardwell, did then and there unlawfully transport any moonshine, you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the State Penitentiary for not less than two years nor more than five years, or by either a fine of five hundred dollars or imprisonment in the county jail for a term of not less than three months nor more than twelve months, or by both such fine and imprisonment."

We have uniformly held, in cases of this character, that defendant is entitled to a converse instruction when he requests it, unless the State's main instruction contains a clause equivalent to a converse instruction. [State v. Hayes, 247 S.W. l. c. 168; State v. Majors, 237 S.W. l. c. 488; State v. Cantrell, 234 S.W. 800; State v. Johnson, 234 S.W. 794; State v. Dougherty, 287 Mo. 82; State v. Harris, 232 Mo. 317; State v. Rutherford, 152 Mo. 124; State v. Fredericks and Langon, 136 Mo. 51; State v. Jackson, 126 Mo. 521.]

These cases proceed on the theory that a converse instruction is no part of the State's case, and if the appellant desires an instruction on the subject he should either present one, or ask the court to give such an instruction. The law, in respect to this matter, is analagous to that relating to an alibi. We have held that where an alibi is relied on, it is a part of defendant's affirmative defense. It is no part of the State's case, and unless the court is requested to instruct on the subject, it cannot be convicted of error for failing to do so. [State v. Brazel, 270 S.W. l. c. 274; State v. White, 263 S.W. l. c. 195; State v. Daugherty, 302 Mo. 638, 259 S.W. l. c. 788-9; State v. Carr, 256 S.W. l. c. 1048; State v. Parker, 301 Mo. 294, 256 S.W. l. c. 1042-3; State v. Bond, 191 Mo. l. c. 563, 90 S.W. 832.]

IV. It will be perceived from reading Instruction 1 supra, that it does not contain the word "feloniously" or words of similar import.

In State v. Tipton, 307 Mo. l. c. 517, a grand larceny case where all the leading authorities in this State are collated and reviewed, we said: "Upon a careful and full consideration of the authorities cited, we have reached the conclusion that the word 'feloniously' was properly used in the information herein to classify the offense, but that it is not necessary to incorporate the same in an instruction defining the crime."

Section 21 of the Act of 1923, Laws 1923, pages 242-3, provides that: "If any person shall . . . transport any 'hootch,' 'moonshine,' 'corn whiskey' [he] shall be guilty of a felony," etc., . . . "Provided: That this section shall not apply in the case of corn whiskey lawfully manufactured, transported or sold."

Section 21 of the above law does not contemplate that the State shall be required to allege and prove, in order to sustain a conviction, that appellant feloniously transported moonshine whiskey. We are also of the opinion that if defendant is charged with transporting moonshine whiskey, and the evidence sustains this charge, it is unnecessary for the court, as in the above instruction, to require the jury to find that the moonshine whiskey was unlawfully transported. In other words, a greater burden was placed on the State in the use of the word "unlawfully," than Section 21 supra required. Broadly speaking, a conviction could be had under Section 21 for unlawfully transporting even corn whiskey, without alleging or proving that it was feloniously transported. The proviso, however, should not be construed to authorize the transportation of "hootch" or moonshine whiskey under any circumstances.

V. Instruction 2, given by the court, properly defines presumption of...