The State v. Padgett

• Decision Date: 20 December 1926
• Docket Number: 27321
• Citation: 289 S.W. 954,316 Mo. 179
• Parties: The State v. John B. Padgett, Appellant
• Court: Missouri Supreme Court

289 S.W. 954

316 Mo. 179

The State v. John B. Padgett, Appellant

No. 27321

Supreme Court of Missouri

December 20, 1926

Appeal from Morgan Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed.

S. C Gill for appellant.

(1) The record as originally written clearly shows that immediately upon the return of the verdict of the jury, May 12, 1925, and before allocution was granted appellant, the court pronounced judgment against him, sentencing him to two years in the penitentiary. This was error and the cause should for this reason be reversed and remanded. Sec. 4057, R. S. 1919; State v. Taylor, 301 Mo. 432; State v West, 270 S.W. 282; State v. Hoffman, 267 S.W. 838; State v. McSame, 267 S.W. 888; State v. Potter, 278 S.W. 711. The clerk cannot correct the record, if erroneous, by noting such correction on the margin, nor by making an additional record. The court may correct its own record during the term, and perhaps by nunc pro tunc entry, at a subsequent term, if there are any notes or minutes to show same is erroneous. Modern Woodmen v. Angle, 127 Mo.App. 106; In re Fulsome Estate, 193 S.W. 618. (2) The evidence shows that the city marshal had not sufficient reason to stop the car in which appellant was riding and making the arrest, and it was error to overrule appellant's motion to suppress the evidence therein named, and likewise error to admit such evidence at the trial of the cause. Secs. 11 and 23, Art. 2, Constitution of Missouri; State v. Hall, 279 S.W. 102; State v. Pigg, 278 S.W. 1030; Carroll v. United States, 45 U.S. 280. (3) It was error for the court not to define the term, transportation, under the facts in this case, as the evidence does not show which bottle contained whiskey. Sec. 19, Laws 1923, p. 242; Sec. 4025, R. S. 1919; State v. Conway, 241 Mo. 292. (4) The information is defective in that it fails to allege from or to what place the intoxicating liquor was transported. The statute defines transportation, as carrying and conveying, "from place to place," by any means except carrying same on person. The information should allege from what point the liquor was carried and to what point. Sec. 19, Laws 1923, p. 242.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The information charges the crime of transportation of "hootch" "moonshine" and "corn whiskey" in the language of the statute and is sufficient in form and substance. State v. Brown, 304 Mo. 81; State v. Cardwell, 279 S.W. 100. (2) Defendant's arrest was lawful. State v. Hall, 279 S.W. 104. Under the circumstances shown in evidence the search was not unreasonable. State v. Owens, 302 Mo. 365, 32 L. R. A. (N. S.) 383; Carroll v. United States, 267 U.S. 132. (3) The court was not required to define terms used in the instructions unless such definitions were requested. Definitions are collateral matters and not within Sec. 4025, R. S. 1919. State v. Griffith, 279 S.W. 140.

OPINION

Walker, P. J.

The defendant was charged by information in the Circuit Court of Morgan County with feloniously having transported intoxicating liquor, commonly called hootch, moonshine or corn whiskey. Upon a trial to a jury he was convicted and sentenced to two years' imprisonment in the penitentiary. From this judgment he appeals.

The city marshal of Versailles stopped a car on the streets of that town, in which the defendant and another were riding, on account of the reckless manner in which they were driving; in so doing the marshal jumped upon the running board and turning off the switch stopped the car. While thus engaged he discovered that the defendant and his companion were drunk and he took them into custody. As he pulled the defendant out of the car a bottle of whiskey fell out of his pocket, and upon an examination of the car two other bottles were found beneath the seat where the defendant had been sitting. One of these contained intoxicating liquor, commonly called "hootch" or "moonshine." At the close of the plaintiff's testimony defendant filed a motion to suppress the evidence, which was overruled.

Defendant's testimony consisted of a statement of facts concerning his apprehension by the marshal. This did not differ materially from the testimony of the latter. Defendant did not deny that one of the bottles found under the seat of the car contained whiskey, nor that he was transporting the same. At the close of all of the testimony defendant filed a motion to quash the information on the ground that it did not allege from and to what place the liquor was being transported, which motion was overruled.

I. It is sufficient to charge the crime of illegally transporting intoxicating liquors in the language of the statute creating and defining the offense. If in so doing all the essential ingredients of the crime are stated, neither the purpose of the act, the intent with which it was done or the initial or terminal points of the transportation need be stated. [State v. Cardwell, 279 S.W. 99, and cases, p. 100; Hall v. State, 12 Ala.App. 210; Commonwealth v. Waters, 11 Gray (Mass.), 81; Smith v. McNulty, 186 N.W. 543 (Nebr.) ; State v. Arnold, 80 S.C. 383; Ramsey v. State, 250 S.W. 674.]

II. Defendant contends that he was deprived of his liberty without due process of law in that he was arrested without process and that his automobile was examined without a search warrant. The legality of his arrest is to be determined by the facts and circumstances attending the same and the law applicable thereto. The place of his arrest was in the city of Versailles and the moving cause for same was his driving an automobile while in an intoxicated condition. We will take judicial notice, not only of the corporate character of municipalities within the State (State v. White, 263 S.W. 192), but also that the population of Versailles, as shown by the last Federal census, authorizes its designation as a city of the fourth class (State v. McBrien, 265 Mo. 594, 178 S.W. 489), and that it is within the purview of the statutes defining the powers of officers of this class of cities (Sec. 7613 and Art. VI, Chap. 72, R. S. 1919). A marshal in a city of the fourth class is a police officer and as such is empowered to arrest any person without a warrant violating any law of the State or city when committed in his presence. [Sec. 8426, R. S. 1919; State v. Underwood, 75 Mo. 230.]

Irrespective of the place where committed it is declared to be a misdemeanor for any one to operate a motor vehicle while in an intoxicated condition. [Sec. 7595, R. S. 1919.] Of this offense the defendant was guilty when arrested by the marshal. His apprehension under this state of facts was authorized and he has no valid cause of complaint on this account. In making this arrest it was disclosed that the defendant was in the act of transporting whiskey and the evidence of his guilt being, as the marshal determined present and apparent from the bottles of liquor found beneath the seat of the defendant's car and the offense being a felony, his detention to answer the charge of the latter after his arrest for the misdemeanor was authorized. The felony, no less than the misdemeanor, was being committed in the presence of the marshal and hence within the terms of the statute, the potential effect of which is to include within the marshal's power arrests without process of parties guilty of any offense against the State or city. The well recognized rule that an officer may arrest without warrant for a felony if he has a well grounded and reasonable belief based upon existing facts and circumstances we discussed at some length in State v. Hall, 279 S.W. l. c. 104, and it...