The State v. Kurtz

• Decision Date: 03 June 1927
• Docket Number: 27774
• Citation: 295 S.W. 747,317 Mo. 380
• Parties: The State v. John Kurtz, Appellant
• Court: Missouri Supreme Court

295 S.W. 747

317 Mo. 380

The State v. John Kurtz, Appellant

No. 27774

Supreme Court of Missouri

June 3, 1927

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

Reversed and remanded.

Sharp & Baynes and Gallivan & Finch for appellant.

(1) The court erred in not requiring the State to elect on which count of the information it would proceed to trial; also in overruling defendant's motion to require election both at the close of the State's case and at the close of the whole case. There is a misjoinder of counts in the information. 31 C. J. 786, sec. 353; Hilderbrand v State, 5 Mo. 313; Storrs v. State, 3 Mo. 9; State v Guye, 252 S.W. 955; State v. Link, 286 S.W. 12; State v. Preslar, 290 S.W. 142. (2) The court erred in refusing to instruct the jury that under the law and the evidence they must find the defendant not guilty, as requested by defendant at the close of the State's case and at the close of the whole case. (a) Suspicions, no matter how strong, will not support a conviction. State v. Miller, 234 Mo. 588; State v. Johnson, 207 Mo. 346; State v. Francis, 199 Mo. 671; State v. Young, 237 Mo. 170; State v. Bailey, 286 S.W. 422; State v. Hollis, 284 Mo. 627; State v. Pope, 269 S.W. 411; State v. Clark, 289 S.W. 963; State v. Ridge, 275 S.W. 59; State v. Ballard, 104 Mo. 637; State v. Woodson, 175 Mo.App. 393; State v. Scott, 177 Mo. 672. (b) There is not sufficient proof that the liquor found was moonshine whiskey. State v. Stratton, 289 S.W. 568; State v. Gatlin, 267 S.W. 797. (3) The court erred in telling the jury they could bring in a verdict of guilty and that he would assess the punishment. Fooxe v. State, 7 Mo. 502; State v. Gilbreath, 130 Mo. 500; State v. Hubbs, 242 S.W. 675. (4) The court erred in permitting witnesses, Dick Eakins, Dick Smith and Lawrence Robbs, to testify to seeing the defendant on a boat on which there was a still, long previous to the date of the alleged offense, and to alleged conversations with the defendant. That would in no manner prove the commission of the crime charged. State v. Preslar, 290 S.W. 144.

North T. Gentry , Attorney-General, for respondent.

(1) The defendant is in no position to complain of the failure of the court to require the State to elect upon which count the State would ask a conviction of the defendant, as the defendant was only convicted on the second count. If the defendant had been convicted on two or more counts, this court has held that he could then complain. State v. Preslar, 290 S.W. 144. As the defendant was only convicted on one count, the same operated as an acquittal of him on the other counts. State v. Link, 286 S.W. 13; State v. Patterson, 116 Mo. 511; State v. Maurer, 96 Mo.App. 347; State v. Jenkins, 246 S.W. 911. If the case should now be reversed, the State could only ask a conviction of the defendant on the second count, the very count on which he was convicted. The court will not do a useless thing and therefore the defendant cannot now ask for such a reversal. (2) The contents of the jugs and bottle were sufficiently identified. The sheriff and his two deputies testified that it was whiskey, which is sufficient proof. State v. Mitts, 289 S.W. 937. (3) No error was committed by the trial court in giving the so-called additional instruction to the jury. State v. Miles, 199 Mo. 554, 560. Nor was error committed by the trial court in assessing the punishment, as the jury failed to agree on the punishment and failed to state in the verdict what the punishment should be. Sec. 4048, R. S. 1919; State v. Rollins, 226 Mo. 537. (4) Defendant's motion for new trial does not conform to the requirements of the Act of 1925, hence the court cannot consider or review the action of the trial court in the giving of instructions nor in the refusal to sustain defendant's demurrer to the evidence. Laws 1925, p. 198, sec. 4079; State v. Standifer, 289 S.W. 856. (5) The evidence was sufficient to justify a conviction of the defendant.

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

OPINION

DAVIS

On August 27, 1925, the Prosecuting Attorney of New Madrid County filed in the circuit court a verified information in four counts, charging defendant in the first count with the felony of unlawfully manufacturing intoxicating liquor; in the second count, with the felony of unlawfully transporting intoxicating liquor from an unknown place in New Madrid County to a place certain in New Madrid County by means of a boat on the Mississippi River; in the third count, with the misdemeanor of unlawfully possessing a still, etc.; and the fourth count, with the misdemeanor of unlawfully possessing intoxicating liquor. Upon application of defendant, the court granted a change of venue and the Hon. E. P. Dorris, special judge, was called in, who sat during the trial. The court sustained a demurrer to the evidence as to the first count, but over the objection and exception of defendant, on motion requesting an election, the court allowed the cause to go to the jury on the second, third and fourth counts, instructing the jury, however, that a verdict of guilty could only be returned on one count. The jury returned and informed the court they agreed upon guilt as to the second count, but were unable to agree on punishment. The court said: "Then go back and write down what you agreed on -- write it out. We the jury find the defendant guilty as charged in the second count of the information but cannot agree on punishment, I will attend to that." The jury retired and returned with the following verdict: "We, the jury, in the above entitled cause find defendant, John Kurtz, guilty as charged in the second count of the information and we do assess his punishment at Failed to agree on punishment." The court then stated that, with the permission of the jury, he would correct the verdict to read, "We, the jury, in the above entitled cause, find the defendant John Kurtz guilty as charged in the second count of the information and we do fail to agree on the punishment." After the jury were polled the court fixed the punishment of defendant at a term in the State Penitentiary for two years. From the judgment thus entered in conformity therewith, defendant duly appealed.

The evidence on the part of the State sanctions the following facts. On a day in July, 1925, upon undisclosed information of suspicious circumstances, the sheriff and deputies traveled by boat across the Mississippi River, opposite New Madrid County, and there found tied to some willows on the Kentucky shore, as we think the State's evidence unqualifiedly discloses, floating in the river, a barge about ninety feet long and twenty feet in width, and two motor boats, propelled by Ford engines. On approaching the barge at between twelve and one o'clock in the night, one of the officers holloed to the outforms of two men discerned, and one answering to ascertain the purpose of the man holloing, the reply forthcoming from the officers was that the sheriff wanted to look over the outfit, upon which the men broke and disappeared in the underbrush. The identity of the men was never ascertained. The only evidence referring to identity came from a deputy sheriff to the effect that one of them was a rather short, small man and the other looked to be a little heavier and a little taller; that he hardly knew how either of the men compared with defendant, you could not tell exactly how large, you could not see good enough to tell exactly -- one of the men was something near Mr. Kurtz's size.

There was found on the Kentucky shore, adjacent to the river bank, willows freshly cut to permit the placement of the equipment found, which consisted of about thirty one-hundred-pound sacks of sugar, a cooker, about seventy barrels, a portion of which had had mash in them, a still, worm, jugs of moonshine whiskey, and other equipment. In no other place were willows found cut; they were as thick as could possibly grow, and no path was found leading from the clearing. An hour or so before the incident related, lights were seen about the place from New Madrid. In the barge was found a brick furnace, a whiskey tester and a half pint or pint of moonshine whiskey in a grip. There was some evidence that mash had splashed from barrels on the deck of the barge. Defendant claimed and replevied the barge and motor boats. The sides of the barge were about six feet high, had been recently covered and we may infer was without a cabin. It was dry weather. There was a slight depression between the bank where the boats were tied and the Kentucky bluffs, but it took a stage of thirty feet of water to overflow the depression, that is, a flood stage. At between four and six o'clock the previous evening no barge or boats were seen at the place the sheriff found them.

Over the objections and exceptions of defendant, the court permitted two witnesses for the State, Dick Eakins and Dick Smith, to testify that in 1923, at Simpson's chute, defendant owned a covered barge, with a cabin on it, on which barge whiskey was being made; that a worm seen on the barge in 1923 resembled the worm and the cooker was about the same size as the one introduced in evidence, but it was not known whether they were the same. The defendant had a fleet of boats on the Mississippi River, and he was engaged in the sand and gravel business, pumping from the bed of the river.

In rebuttal, after defendant had testified, the State introduced testimony tending to show his character for morality was bad, but it developed that this was based on some trouble he had had with his wife. One witness who testified his reputation for morality was bad, also testified that his reputation for truth and veracity as well as honesty was good.

Defendant's evidence tended to show that he...