Opinion
December 20, 1930.
1. INTOXICATING LIQUOR: Transportation: Carried Upon Person. Under the statute (Sec. 19, Laws 1923, p. 242) the carrying of intoxicating liquor upon the person is not unlawful transportation. And where the State's evidence shows that defendant had a bottle of whiskey in his coat pocket, it must show that, while the truck in which he had been riding was in motion, he removed it from his pocket and placed it in or upon some part of the truck, or produce evidence from which such removal may be legitimately inferred, or else a conviction for transportation cannot be sustained. That a bottle of whiskey was found on the seat of the standing truck on which he was sitting when arrested is not enough to support an inference that the truck was in motion when the bottle was removed from his person and placed upon the seat. A verdict of guilty cannot be based on mere suspicion or conjecture.
2. ____: ____: Insufficient Evidence. If the evidence for the State shows that one of the defendants had exclusive control of the bottle of whiskey found on the seat of the truck but nothing to do with the movements of the truck, and that the other had exclusive control of the movements of the truck but nothing whatever to do with the bottle of whiskey found on its seat, it is insufficient to sustain a conviction of either upon a charge of unlawful transportation.
3. ____: ____: Stationary Vehicle. If it does not affirmatively appear, and there is no inference from which it may be legitimately inferred, that the bottle of whiskey was on the seat of the truck, or that it was resting upon or supported by any part of the truck, at any time while the truck was in motion, it cannot be held that there was an unlawful transportation of the whiskey.
Appeal from Reynolds Circuit Court. — Hon. E.M. Dearing, Judge.
REVERSED AND DEFENDANTS DISCHARGED.
John H. Keith for appellants.
(1) The court erred in refusing to give the demurrer to the evidence offered by defendants at the close of the State's case, and again at the close of the whole case, for the reason there was no substantial evidence to support the verdict of a jury. State v. Peters, 6 S.W.2d 838; State v. Eklof, 11 S.W.2d 1033; State v. Vinson, 22 S.W.2d 779; Sec. 19, Laws 1923, p. 242; State v. Perkins, 18 S.W.2d 6. (2) The court erred in refusing to sustain the motion to suppress the evidence filed by defendants, for the evidence showed that the search of the truck was made without the sheriff having any knowledge of either of defendants having transported hootch, moonshine, corn whiskey, in violation of the rights of defendants and contrary to the provisions of Sections 11 and 23 of Article 2 of the Constitution of Missouri. (3) Appellants were illegally convicted, for the reason that there was no evidence that showed either of them transported the liquor in the truck, but on the contrary the evidence all showed that the liquor was in Randolph's coat pocket, and it will be presumed to have remained there until the contrary was shown. All the evidence showed it remained there until taken out when the truck was stopped in Centerville after it had been towed in by Brooks. Sec. 19, Laws 1923, p. 242; State v. Vinson, 22 S.W.2d 780; King v. Railroad (Mo.), 263 S.W. 828; 22 C.J. 86.
Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.
(1) The sheriff having probable cause to suspect the unlawful transportation of intoxicating liquor, the search of the truck without a search warrant was legally made; hence the motion to suppress the evidence was properly overruled. State v. Connor, 318 Mo. 592, 300 S.W. 685; State v. Loftis, 316 Mo. 878; State v. Hall, 278 S.W. 1028; State v. Pigg, 312 Mo. 212, 278 S.W. 1030; State v. Owens, 302 Mo. 368, 259 S.W. 105. (2) There was sufficient evidence to warrant the submission of the case to the jury, whose duty it was to say whether or not the liquor was transported as charged. State v. James, 1 S.W.2d 137; State v. Smith, 300 S.W. 1081; State v. Bishop, 296 S.W. 147; State v. Helpley, 297 S.W. 701.
Bill Randolph, Jesse Stroup and George Gore were jointly charged, in the Circuit Court of Reynolds County, with the unlawful transportation of "hootch, moonshine, corn whiskey." Gore took a severance. Randolph and Stroup were tried together, and the jury found them guilty and assessed their punishment at imprisonment in the penitentiary for two years. They were sentenced accordingly, and, in due course, appealed.
The evidence adduced by the State is substantially as follows: On August 20, 1927, Roy Scott, a resident of the town of Centerville, in Reynolds County, saw Randolph and Stroup, with a Ford truck, a short distance from Centerville. Randolph was "cranking" the truck, and had a bottle "sticking up out of his coat pocket." Later that day. Stroup and Gore were in Centerville, "hunting for a battery to go on their truck," but "they couldn't get one." They met Jesse Brooks, who was engaged in "trucking," and arranged with him "to tow them into town." Stroup guided the Ford truck as it was towed to Centerville, and Randolph and Gore rode in the seat with him. Upon reaching Centerville. Brooks stopped his truck in front of Scott's garage and left the Ford truck standing there, "south of the court house fence." Randolph and Gore remained in the seat of the Ford truck, while "Stroup was around there trying to find some one to take them to Corridon." At that time, "someone came by" the court house and told the sheriff "there was a drunk man over in that truck." The sheriff went immediately to the Ford truck, told Randolph and Gore that he "was going to search their car for whiskey." Randolph challenged his authority to search the truck. Thereupon, the sheriff arrested Randolph and Gore, searched the truck, and found a bottle of "moonshine whiskey" on the seat between them. Shortly thereafter, the sheriff arrested Stroup. Randolph's conduct was disorderly, and "he used a whole lot of vile language," after he was arrested. The bottle of "moonshine whiskey" found on the seat of the truck by the sheriff was admitted in evidence in connection with his testimony.
Randolph testified: He had a bottle in his "coat pocket" when he came into Centerville on the Ford truck, but not the bottle identified by the sheriff. He took it out of his pocket "in front of the garage." He had nothing to do with the driving of the truck, and did not know who owned it. Stroup did the driving.
Stroup testified: The bottle identified by the sheriff is the bottle Randolph had "in his pocket" on the day the Ford truck was towed to Centerville. He saw "that bottle" in Randolph's pocket "there where the truck broke down." He did not know "whether he took it out" of his pocket. He was not in the truck when Randolph and Gore were arrested. He had nothing to do with the transportation of the bottle, and Randolph had nothing to do with the driving of the truck.
The defendants are clearly right in the contention that there is no substantial evidence upon which to base the verdict and judgment of conviction in this case.
Section 19 of the Prohibition Act of 1923 says that the words "transport" and "transportation," as used in the prohibition acts of this State, "shall be held to mean and include every mode, method, or means of carrying or conveying, intoxicating liquor from place to place in any container, or receptacle, of whatsoever kind or character, and by whatsoever means used, except carrying intoxicating liquor on person." [Laws 1923, p. 242.]
It does not affirmatively appear that Randolph had anything to do with the movements of the truck, nor that Stroup had anything to do with the bottle of whiskey which the sheriff found on the seat of the truck. On the contrary, the evidence tends to show that Randolph had exclusive control of the bottle of whiskey, and that Stroup had exclusive control of the movements of the truck. Moreover, it does not affirmatively appear, and there is no evidence from which it may be legitimately inferred, that the bottle of whiskey was on the seat of the truck, or that it was resting on or supported by any part of the truck, at any time while the truck was in motion. It is undisputed that Randolph had the bottle of whiskey in his coat pocket "there where the truck broke down," a short distance from Centerville, and he testified that he did not take it out of his coat pocket until after the truck was stopped "in front of the garage" in Centerville. If the bottle of whiskey was carried on his person while the truck was in motion, then it was not unlawfully transported. Of course, the jury were not bound by Randolph's testimony, but outside of his testimony, they could only speculate and conjecture as to when he took the bottle of whiskey out of his pocket. And a verdict based upon speculation and conjecture will not be permitted to stand. In three recent cases, State v. Peters, 6 S.W.2d 838; State v. Eklof. 321 Mo. 548, 11 S.W.2d 1033, and State v. Vinson, 22 S.W.2d 779, the defendants were convicted of transporting "hootch, moonshine, corn whiskey" unlawfully, on facts and circumstances similar to the facts and circumstances developed at the trial of this case, and, in each instance, we held that the evidence was not sufficient to support the verdict. See, also, our ruling in State v. Perkins, 18 S.W.2d 6.
Manifestly this prosecution must fail for the want of proof. The judgments entered against the defendants are reversed and the defendants discharged. All concur.