The State v. Pigg

• Decision Date: 30 December 1925
• Docket Number: 26185
• Parties: THE STATE v. EDWARD PIGG, Appellant
• Court: Missouri Supreme Court

278 S.W. 1030

312 Mo. 212

THE STATE v. EDWARD PIGG, Appellant

No. 26185

Supreme Court of Missouri

December 30, 1925

Appeal from Audrain Circuit Court; Hon. Ernest S. Gantt Judge.

Affirmed.

Don C. Carter for appellant.

(1) The court erred in overruling defendant's motion to quash the information and suppress the evidence, for the reason that said evidence was illegally obtained and was in violation of Sections 11 and 23 of Article 2 of the Constitution of Missouri. State v. Owens, 302 Mo. 348, 32 A. L. R. 383; State v. Lock, 302 Mo. 400; State v Tunnell, 302 Mo. 433; People v. Case, 220 Mich 379, 27 A. L. R. 686; Hoyer v. State, 193 N.W. 89, 27 A. L. R. 673; "Annotation Search and Seizure Law," 27 A. L. R. 709; United States v. Rembert, 284 F. 996; Butler v. State, 129 Miss. 778; United States v. Meyers, 287 F. 260; State v. Gibbons, 118 Wash. 171; State v. Dunnivan, 269 S.W. 415. (2) The court erred in giving Instruction 1, for the State, in which it was undertaken to define the elements of the offense with which defendant was charged. State v. Perkins, 240 S.W. (Mo. App.) 851; Sec. 6602, R. S. 1919; Laws 1921, p. 413; Sec. 6536, R. S. 1919; 33 C. J. 577; Volstead Act, 41 U.S. Stat. 305, Chap. 85; State v. Gauthier, 121 Me. 522, 26 A. L. R. 652. (3) The court erred in refusing to properly rebuke and reprimand the prosecuting attorney, for his highly prejudicial and improper argument to the jury. State v. Stockton, 228 S.W. 1082; State v. Schneider, 259 Mo. 319; State v. Webb, 254 Mo. 414; State v. Bobbst, 131 Mo. 328; State v. Clancy, 225 Mo. 659; State v. Dozier, 177 S.W. 359; State v. Davis, 217 S.W. 91; State v. Goodwin, 217 S.W. 264; State v. Fischer, 124 Mo. 460; State v. Adams, 269 S.W. 401. (4) The court erred in refusing to give defendant's demurrer to the evidence on the first count of the information at the close of the State's case, and again at the close of all the evidence in the case. See cases cited, under Point 1. (5) The court erred in permitting the State to offer in evidence proof of defendant's prior conviction of a violation of the prohibition laws, which was offered for the sole purpose of inflicting upon defendant punishment as for a second conviction under Sec. 6604, R. S. 1919, and then failed to properly instruct the jury thereon.

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

(1) The court committed no error in allowing a witness for the State to testify, although his name had not been indorsed on the information. The right of the State to call witnesses whose names are not indorsed on the information or indictment, in the absence of intentional deception on the part of the prosecution, is unquestioned. State v. Rasco, 239 Mo. 535; State v. Lee, 288 Mo. 41; State v. Barrington, 198 Mo. 23, 68; State v. Peak, 292 Mo. 249; State v. Merrell, 263 S.W. 119; State v. Dixon, 253 S.W. 747. (2) The argument of State's attorney before the jury does not constitute reversible error. Although the courts do not approve of epithets and remarks outside of the record, yet if such conduct has not apparently influenced the jury the case will not be reversed on that ground. State v. Summar, 143 Mo. 220; State v. Elvins, 101 Mo. 243; State v. Hart, 237 S.W. 473; State v. Baker, 262 Mo. 689; State v. Hilton, 248 Mo. 522; State v. Rasco, 239 Mo. 535, 581; State v. Gartrell, 171 Mo. 489, 512; State v. Sherman, 264 Mo. 374; State v. Gordon, 253 Mo. 510; State v. Tracy, 294 Mo. 372. (3) The court committed no error in overruling defendant's instruction in the nature of a demurrer. There was sufficient evidence to take the case to the jury. State v. Barrington, 198 Mo. 23; State v. Bowman, 243 S.W. 114; State v. Poor, 286 Mo. 644; State v. Concelia, 250 Mo. 411. (4) The court did not commit error in failing to withdraw from the jury the evidence relative to defendant's prior conviction as a violator of the prohibition laws. Defendant offered an instruction on this point. If there was any error in this respect the defendant invited it and consequently cannot complain. State v. Miller, 234 S.W. 813; State v. Hart, 237 S.W. 482; State v. Starr, 244 Mo. 161. (5) The court properly overruled defendant's motion to suppress evidence in this case on the ground that such evidence was unlawfully obtained. The evidence consisted of a sack of sugar and some fruit jars containing a small amount of corn liquor. This was taken out of defendant's car by a police officer who had no warrant for this purpose. Courts have held under circumstances similar to these in this case that an officer was justified in searching a suspicious looking car for liquor without a search warrant. If an officer has reasonable grounds to believe that an automobile has liquor in it then he is justified in searching it. The evidence in this case was obtained legally. State v. Zugras, 267 S.W. 804; Bent v. Commonwealth, 240 S.W. 49; State v. Owens, 259 S.W. 104; Carroll v. United States, 69 L.Ed. 347.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

The information, filed in the Circuit Court of Boone County, in the first count charges that the defendant did, on or about February 2, 1924, unlawfully possess intoxicating liquors for beverage purposes, and that defendant was convicted on April 8, 1922, in the Circuit Court of Boone County, Missouri, for violating Article 7, Chapter 52, Revised Statutes 1919, as amended by Laws of Missouri of 1921, page 414. The second count, which charges that the defendant did unlawfully transport intoxicating liquor, need not be considered, as the court at the close of the evidence directed an acquittal thereon. On the application of the defendant, a change of venue was awarded to Audrain County where, on a trial, the defendant was found guilty on the first count, his punishment assessed at imprisonment in the county jail for a term of six months and a fine of $ 500, and sentence pronounced in accordance with the verdict of the jury.

Before entering upon the trial the defendant filed a motion stating that on the night of February , 1924, the sheriff of Boone County and certain police officers of the city of Columbia, unlawfully searched his automobile, parked in said city of Columbia, and unlawfully seized and took into their possession a number of glass jars and jugs which were in said automobile, which they claim contained intoxicating liquors and are now held by them for the purpose of evidence in this case, and that the seizure was without a lawful search warrant and in violation of the Fourth and Fifth Amendments of the Constitution of the United States, and of Sections 11 and 23 of Article II of the Constitution of this State; that the State will endeavor to prove that said jars and jugs contained liquor and were defendant's property and located in defendant's automobile; that for the purpose of this motion and to invoke his constitutional rights defendant admits and avers that said jars and jugs were his property at the time and that he is now entitled to the possession thereof. Wherefore defendant prays that said information be quashed and that all evidence so illegally obtained by said officers be suppressed and excluded at the trial, etc.

On the hearing of this motion the defendant testified that he was a farmer living twenty miles north of Columbia, and that on the morning of February 2, 1924, he drove in his Ford touring car to Columbia, attended to some business matters during the day, and about seven p. m. parked his car on Broadway. After seeing some parties about some business matters, at about nine p. m., he went to get his automobile, but it was gone. After a search about town he found his car at the police station and was arrested and charged with having intoxicating liquor in his possession and transporting it. He testified that there were no bottles or sugar in the car when he left it and that the bottles or jars and sugar found in the car were not his property.

Mr. Whiteside, a policeman, testified that, as he was walking his beat a little before nine p. m., he saw this car covered with mud, and when within three or four feet of it detected the odor of corn whiskey emanating therefrom. He saw a 100-pound sack of sugar on the front seat and several gunny sacks filled with glass jars and jugs between the seats. The car had the odor of whiskey and it was driven to the police station, where the sheriff and several policemen found thirty-six half-gallon glass fruit-jars in burlap sacks, three jugs and the sack of sugar in the car. Each of the jars contained from a few drops to a teaspoonful of whiskey. They did not taste it, but said it looked and smelled like corn whiskey; they drained the jars into one jar and got about half a tumbler (or as one witness said, nearly a half pint) of whiskey.

Officer King, on being interrogated by appellant's counsel, said there was nothing in the jugs; the jars smelled like corn whiskey. "Q. These jars didn't have anything in them except the residue or what would usually be left in any vessel after it had been emptied, just what would naturally run down from the sides? A. Yes, sir.

"Q. A drink of liquor in any of them? A. No, sir.

"Q. Drained them into another vessel and got about how much? A. Something near half a pint."

The court overruled the motion.

Thereupon the cause went to trial upon substantially the same evidence as that offered on the motion to suppress the evidence. The defendant, however, did not testify. In addition to the evidence of the officers who testified at the hearing of the motion, the State offered in evidence the liquor drained from the jars and a duly certified copy of the record of the defendant's conviction on April 9, 1922, in the Boone Circuit Court, on four counts,...