The State v. Duncan

• Decision Date: 23 June 1927
• Docket Number: 27794
• Citation: 296 S.W. 149,317 Mo. 451
• Parties: The State v. Walter Duncan and Sell Smith, Appellants
• Court: Missouri Supreme Court

296 S.W. 149

317 Mo. 451

The State v. Walter Duncan and Sell Smith, Appellants

No. 27794

Supreme Court of Missouri

June 23, 1927

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

Reversed and remanded.

Von Mays for appellants.

The verdict of the jury was not supported by substantial evidence. State v. Smith, 285 S.W. 1039; State v Bly, 289 S.W. 558.

North T. Gentry, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.

The premises of the defendant Duncan were used in close connection with the handling of illicit whiskey. The finding of whiskey bottles, corks, and other equipment connected with this business, is conclusive proof of this fact. Defendant Smith being seen going to these places on the premises where the liquor and liquor handling equipment was later found, and delivering bottles to parties who paid him, should be conclusive proof that a sale of liquor was being consummated. One of the strongest elements of such proof is the fact that the sheriff found a comparatively large sum of money upon Smith, which, according to his testimony, was in currency of one-dollar bill denominations, and aggregating between $ 140 and $ 170. It is not reasonable to presume that defendant Duncan was innocent of knowledge of what was going on. His store was quite small, and the living quarters of defendant Smith adjoined and in fact were a part of his store building with the quantity of liquor bottles, corks, etc., found in and on these premises, fully warrants the jury in believing that he was a party to the sales of liquor made there. Any other conclusion would not be reasonable, and it is respectfully submitted that the verdict was fully justified. State v. Brock, 280 S.W. 48.

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

OPINION

HENWOOD

By an information filed in the Circuit Court of Pemiscot County, Walter Duncan and Sell Smith (appellants) and C. N. Duncan, Walter Akers and Hiram Bullock were jointly charged with the unlawful sale of one-half pint of moonshine, corn whiskey in that county on January 25, 1925. They were tried together. At the close of the State's case in chief, the State dismissed as to Hiram Bullock. The jury acquitted C. N. Duncan and Walter Akers, but found Walter Duncan and Sell Smith guilty and assessed their punishment at a fine of $ 500. Failing in their motion for a new trial, they appealed from the judgment and sentence rendered in accordance with the verdict.

There is no dispute as to any material fact in the evidence and the sole question for determination is whether the State made a case for the jury. On January 25, 1925, the appellant Walter Duncan had a patch of eight or ten acres of land at the edge of the town of Caruthersville on the Hayti road, where he operated a store and a gasoline filling station. He sold groceries, lunches and cold drinks. There was a "little tin shack connected on the side of the store where they had a kind of pit to barbecue meat and lunches like that." There was also a barn on the premises, and a "small box house," and a lumber pile of some sort between the barn and the store. Appellant Sell Smith (a negro) and Walter Akers and Hiram Bullock worked at this place, but Akers and Bullock were "fishing up on Wolf Bayou" at the time in question. C. N. Duncan lived in another part of the county, but was at the store that day. H. D. Gaines, the chief prosecuting witness, furnished the only evidence as to any sale of intoxicating liquor by appellants or their codefendants. Gaines was an officer, but his official title does not appear in the record. Sometime during the day mentioned he made some long range observations of Walter Duncan's premises from behind some weeds on the levee, approximately 400 yards or a quarter of mile away. In this connection, he says, "I was there to see what I could find out, what was going on." As to these observations, he testified as follows:

"Well, I seen a good many cars would drive up there and after the cars would stop, parties would get out, coming in the front; this nigger would come from the back and go out towards the barn, I think he made two or three trips to the barn and made a trip or two out to this little house, and one or two trips out to a lumber pile where there was some lumber stacked up.

"I could see him have something in his hand that looked to be a bottle, and some parties sometimes with him -- he would go back after he done gone to this place, and meet them; I could see him hand them something, and one or two times I could see he had something in his hand, looked like he was counting his money, and he would put that in his pocket and go back in.

"Q. When he would be making trips from the store out to the barn and these other places that you speak about, would he have anything in his hand? A. I couldn't see anything, he was walking with his hands down, I couldn't tell."

On cross-examination he admitted that his observations of Sell Smith represented all he knew of whiskey sales on the place. When asked the direct question as to whether he saw Sell Smith sell any whiskey, he said: "Well, like I stated, that's what I thought he was doing, I wasn't close enough to tell just what it was.

"Q. That's a supposition? A. From the way it looked.

"Q. Founded upon what you testified you saw on that occasion? A. Yes, sir, what I could see and his actions and the way things were, that's what I thought he was doing.

"Q. Were you close enough to tell what kind of a bottle? A. No, I wouldn't be positive what kind of a bottle, looked like a small bottle, I couldn't say just what kind it was.

"Q. That's just your supposition? A. Yes, sir, that's right.

"Q. You were so far away you couldn't tell what kind of a bottle he had in his hand or whether it had anything in it? A. I don't know about it being so very far, I couldn't tell exactly what was in the bottle.

"Q. That's the reason you couldn't tell, because you were so far away? A. I guess if I had been close I could have told more.

"Q. You didn't see Sell Smith sell anybody any whisky? A. Just like I stated, what I seen him do, that's what I thought he was doing.

"Q. Well, are you swearing to this jury that Sell Smith on that day sold anybody any whiskey of any description? A. Well, I don't know -- I swear I wasn't right close enough to see what kind of change it was but from the way things looked there, it looked very much like it to me.

"Q. You couldn't tell this jury positively on your oath that Sell Smith sold anybody any whiskey there that day? A. This jury understands just exactly what I said, Senator, and that's all I know; as far as swearing positively that he handed this man whiskey and what kind of money, I wouldn't do that because I couldn't do it, but it's just exactly like I stated it.

"Q. You were so very far, you couldn't see whether the bottles were empty? A. I couldn't see what it had in it, whether it was druggy, clear or what.

"Q. Could you tell whether it had any liquid in it? A. No, sir.

"Q. You wouldn't tell the jury just what kind of bottle it was? A. No -- I don't know." (Italics ours.)

While this witness displayed no hesitancy in guessing about other things, he refused to guess or approximate the distance from his location on the levee to the point where he saw Sell Smith making trips to the barn, though urged to do so both by defending counsel and the...