Opinion
March 25, 1931.
1. SEARCH AND SEIZURE: After Arrest. Where the officers have reasonable grounds to believe that the accused is committing a felony and so believe, they are authorized to arrest him without a warrant, and as incidents of the arrest to search his automobile without a search warrant, and evidence of the felony found in the search is admissible in evidence; and the testimony of one officer that the defendant was arrested before the search is sufficient to support a finding to that effect, although two other officers present testify that the search was made before the arrest.
2. INTOXICATING LIQUOR: Transportation: Sufficient Evidence. Evidence that appellant was driving and controlling the movements of the automobile in which thirteen gallons of liquor were found, is sufficient to support a verdict finding him guilty of transporting "moonshine" or "corn whiskey." And testimony of appellant and his co-defendant that he knew nothing about the whiskey found in the automobile and that he did not knowingly transport whiskey merely presents an issue of fact for the jury to determine.
3. INSTRUCTION: No Complaint. A complaint made in appellant's brief of an instruction given for the State will be disregarded where he made no such complaint in his motion for a new trial.
4. ____: Good Character. An instruction on the good character of defendant is not necessary where there is no evidence tending to show his character is good. Testimony that his reputation for truth and veracity is good is not evidence relating to his character, but only to his reputation as a witness, and, moreover, such evidence should not be admitted where his reputation for truthfulness is not attacked.
5. EXCESSIVE PUNISHMENT: Passion and Prejudice. The fact that the jury assessed defendant's punishment at the maximum amount prescribed by the statute, standing alone, is not enough to justify a ruling that the punishment is proof of passion and prejudice on the part of the jury.
6. INFORMATION: Verdict: Intoxicating Liquor: Transportation. An information charging defendant with unlawfully, wilfully and feloniously transporting "hootch, moonshine, corn whiskey," and a verdict finding him guilty and assessing his punishment at imprisonment in the penitentiary for five years, are sufficient in form and substance.
Appeal from Bates Circuit Court. — Hon. W.L.P. Burney, Judge.
AFFIRMED.
Howell H. Heck for appellant.
(1) The court erred in not suppressing the evidence for the following reasons: (a) The car was not suspicious; (b) Liquor was not in sight; (c) Defendants were sober and no smell of liquor emanated from the car or breath; (d) The "tip" did not identify defendants; (e) Any Ford would have answered the "tip" the officers received; (f) There was no search warrant; (g) There was a search, then an arrest; (h) There should have been an arrest if the officers thought that the law was being violated or defendants should have been held until a search warrant could have been obtained; (i) The search was violative of Section 11, Article 2, of Missouri Constitution. State v. Owens, 302 Mo. 348; State v. Lock, 302 Mo. 400; State v. Hall, 312 Mo. 425; State v. Williams, 14 S.W.2d 434. (2) The court instructed on the meaning of "hootch, moonshine, corn whiskey" when there was no proof that the liquid introduced was either. It is elemental that facts must be before the court before an instruction can be given. (3) The demurrer, at the close of the evidence, should have been given for the following reasons: (a) There is no evidence that the liquid was "hootch, moonshine, corn whiskey;" (b) Absent such proof a conviction for transportation cannot stand; (c) The State must prove conscious possession. State v. Gatlin, 267 S.W. 797; State v. Kroeger, 13 S.W.2d 1067; State v. Kurtz, 317 Mo. 380; State v. Bennett, 18 S.W.2d 52. (4) The information, being a pleading, should not be read to the jury, and then the jury instructed to disregard it. Sec. 4025, R.S. 1919. (5) The verdict of the jury was the result of passion and prejudice. (6) The State failed to show either defendant was in control of the car. State v. Peters, 6 S.W.2d 838. (7) None of the officers called the liquid corn whiskey, and there is no proof that it was unlawfully manufactured; hence a conviction for transportation is error. State v. Kroeger, 13 S.W.2d 1067; State v. Corp, 22 S.W.2d 774. (8) The court failed to instruct on good character. R.S. 1919, sec. 4025. (9) The main instruction failed to require the jury to find that the transportation was done feloniously. State v. Corp, 22 S.W.2d 776.
Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.
(1) The motion to suppress was properly overruled. The officer had probable cause to suspect that the car was carrying liquor. The wife of the defendant was in an intoxicated condition. Probable cause consists in a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty. State v. Pigg, 278 S.W. 1032; State v. Loftis, 292 S.W. 29; State v. Howard, 23 S.W.2d 13; State v. Williams, 14 S.W.2d 435. (2) The officers had reason to believe a felony was being committed and therefore had a perfect right to search defendant's car. State v. Harris, 22 S.W.2d 1051; State v. Williams, 14 S.W.2d 435; State v. Bailey, 8 S.W.2d 59. The liquor seized was identified by several witnesses as corn whiskey and moonshine. (3) The demurrer was properly overruled. There was ample evidence that the liquor seized was moonshine. The weight of this evidence was for the consideration of the jury. State v. Banmann. 1 S.W.2d 156; State v. Zoller, 1 S.W.2d 142; State v. Pinkard 300 S.W. 751; State v. Jackson, 283 Mo. 24: State v. Concelia. 250 Mo. 424. (4) The jury was not instructed to disregard the information. The court gave the usual stock instruction relative to the information by telling the jury that the information was a mere formal change and was no evidence whatever of the defendant's guilt. (5) There is nothing whatever in the record to prove that the verdict is a result of passion and prejudice. State v. Sheeler, 7 S.W.2d 343. (6) Deputy Sheriff Bert Bradley testified that Harlow had admitted ownership of the car to him. It was then a matter for the jury to pass upon. State v. Miller, 12 S.W.2d 41. (7) The whiskey was sufficiently identified as moonshine, this is sufficient to send the case to the jury. State v. Cook, 3 S.W.2d 367: State v. Griffith, 279 S.W. 138. (8) The defendant was not entitled to a character instruction because his character had not been placed in issue by the State. The only testimony offered regarding his reputation was by the defendant as to his truth and veracity. The testimony was favorable to defendant, but should not have been admitted. The defendant has no right to offer evidence as to his truthfulness and veracity until it is attacked by the State, and this was never done. State v. Marshall, 297 S.W. 68; State v. Fogg, 206 Mo. 716; State v. Beckner, 194 Mo. 292.
W.E. Harlow and R.E. Ferrell were jointly charged, in the Circuit Court of Bates County, with unlawfully, willfully, and feloniously transporting "hootch, moonshine, corn whiskey." They were tried jointly and found guilty, and the jury assessed Harlow's punishment at imprisonment in the penitentiary for five years, and assessed Ferrell's punishment at imprisonment in the county jail for three months and a fine of $500. Judgment and sentence followed, in accordance with the verdict, and Harlow appealed. Ferrell did not appeal.
The evidence adduced by the State is, in substance, as follows:
In the month of January, 1929, and for about two years prior thereto, Mike Ioup operated a gasoline filling station and a lunch room on State Highway No. 71, about one mile south of the town of Rich Hill, in Bates County. In the early part of January, 1929, Mike informed Sheriff Hartley of Bates County that two men, a tall man and a short man, had been transporting and "peddling" whisky in that vicinity; that these men had used different cars in transporting whisky, sometimes a Chevrolet car, and the last two or three times a new Ford car; that, on some of these trips, the tall man was accompanied by a woman and not by the short man; and that, on one occasion, the tall man and short man came into his lunch room and ordered some sandwiches, and, while he was preparing the sandwiches, stole two watches from his "punch board." Mike also told the sheriff that he wanted to "get even" with them because they stole his watches and asked the sheriff to "lay" for them and "get them" with a load of whisky. The sheriff suggested that Mike order some whisky from these men and notify him as to when it would be delivered. Mike ordered five gallons of whisky, "of the corn brand," and notified the sheriff, "the night before," that these men would "come through" in a new Ford car, with a load of whisky, about eight o'clock in the evening of the next day. Between seven and eight o'clock in the evening of the next day, January 18, 1929, the sheriff and two deputies. Bradley and Oberwether, went to Mike's premises and, after stationing themselves at different points outside of the lunch room, awaited the arrival of the new Ford car and the men described by Mike. About nine or 9:30 o'clock that evening, a new Ford coupe approached the lunch room from the south on State Highway No. 71 and stopped near the lunch room. Immediately a tall man got out of the Ford coupe and entered the lunch room, leaving a short man and a woman in the car. The tall man was Harlow, the short man was Ferrell, and the woman was Harlow's wife. Oberwether testified that he followed Harlow into the lunch room and arrested him before the car was searched. The sheriff and Bradley testified that Harlow. Ferrell and Mrs. Harlow were arrested after the car was searched. As the sheriff and Oberwether approached the car, Bradley was "assisting" Ferrell and Mrs. Harlow out of the car, and all three of the officers observed that Mrs. Harlow was intoxicated. "very drunk." After Ferrell and Mrs. Harlow got out of the car, Bradley took a bunch of keys out of the "dash board," and used one of the keys to unlock a compartment in the rear part of the car. In this compartment Bradley and Oberwether found thirteen gallons of liquor, in two five-gallon jugs and three one-gallon jugs. The jugs were enclosed in gunny sacks. They removed the liquor from the car and turned it over to the sheriff. One of the jugs was produced at the trial and admitted in evidence, and the liquor contained therein was "inspected and smelled by the jury." The sheriff and Bradley testified that the liquor in this jug was "moonshine," and Oberwether testified that it was "corn whisky." All three said they smelled it, but did not taste it. At the time the Ford coupe was searched, Harlow told the officers that it belonged to him, but later told them that it belonged to "a lady friend of his in Kansas City." The sheriff testified that, about a week or ten days after the seizure of the liquor, Harlow "said he would make it right with me if I would let him change this liquor; he said he would take the liquor out and put vinegar in;" and that he told Harlow "nothing doing."
Harlow testified: At the time in question, he was thirty-two years of age, and lived in Kansas City, Missouri, where he was employed as a cab driver. He was previously employed for six years as a police officer in Kansas City. The new Ford coupe belonged to Mrs. Doris Henderson a restaurant keeper in Kansas City. He and his wife and Ferrell were taking a ride in this car in the afternoon of January 18, 1929, and he decided to drive "to Mike's to buy some whisky." They stopped there about four o'clock that afternoon, and bought some sandwiches and "two half nints" Then he drove on south to Nevada, and, when he stopped at "Mike's" on the way back to Kansas City that night for the purpose of buying some more whisky from Mike, the officers arrested him and Ferrell and his wife, and searched the car. He "knew nothing about" the whisky found in the car. Prior to this occasion, he had bought whisky from Mike several times, but he had never stolen any watches from Mike. His wife usually accompanied him on his trips to "Mike's place." Ferrell had never gone there with him before.
Ferrell's testimony was substantially the same as Harlow's in every particular. He said Harlow was his neighbor; that he "just went for a ride," upon Harlow's invitation, on the occasion in question; and that he had never "been any place with Mr. Harlow in an automobile, outside of Kansas City, before this day." He also said he did not know that there was any whisky in the car.
Two witnesses testified that Harlow's general reputation "for truth and veracity" was good; and two other witnesses testified to the same effect on behalf of Ferrell.
I. When the case was called for trial, the appellant and his co-defendant filed a joint motion to suppress the evidence relating to the search of the car and the seizure of the liquor found therein, on the ground that the search and Search: After seizure. without a search warrant, was illegal and Arrest. in violation of their constitutional rights, and the appellant now complains of the action of the trial court in overruling the motion.
Sheriff Hartley and his deputies, Bradley and Oberwether, were called as witnesses in support of the motion, and the testimony given by them at that time is the same, in substance and effect, as the testimony given by them at the trial of the case, when they were called to testify as witnesses for the State. The statement of the State's evidence hereinabove made, concerning the search and seizure, is taken from their testimony. According to their testimony, they had been informed by Mike Ioup that a tall man, sometimes accompanied by a woman and sometimes by a short man, had been transporting and "peddling" whisky on State Highway No. 71, in Bates County, and that these persons, or some of them, would "come through" in a new Ford car, with a load of whisky, during the evening of January 18, 1929; and, with this information, they went to Mike's lunch room early that evening, and awaited the arrival of the new Ford car and the persons described by Mike; and, about nine or 9:30 o'clock that evening, a new Ford coupe, driven by a tall man, who was accompanied by a short man and a woman stopped at the lunch room; and the tall man was Harlow, the short man was Ferrell, and the woman was Harlow's wife: and Mrs. Harlow was intoxicated, "very drunk." Under such circumstances the officers had reasonable grounds to believe that Harlow, Ferrell and Mrs. Harlow were committing a felony: and, so believing the officers were authorized to arrest Harlow, Ferrell, and Mrs. Harlow without a warrant, and, as incidents to the arrest to search the car without a search warrant and to seize the liquor found therein, whether it was "moonshine" or "corn whisky." At the hearing on the motion to suppress the evidence relating to the search and seizure Deputy Sheriff Oberwether testified, and the trial court found that he arrested Harlow before the car was searched. And in view of the testimony of all three of the officers, as to what was said and done by them before the car was searched the trial court would have been warranted in finding that Ferrell and Mrs. Harlow as well as Harlow, were, in fact, arrested before the car was searched although Sheriff Hartley and Deputy Sheriff Bradley testified that Harlow. Ferrell and Mrs. Harlow were arrested after the car was searched. It follows that the motion to suppress the evidence relating to the search and seizure was properly overruled. [See our rulings in State v. Bailey 320 Mo. 271, 8 S.W.2d 57; State v. Williams, 14 S.W.2d 434; State v. Howard, 23 S.W.2d 11.]
II. Nor is there any merit in the appellant's challenge of the sufficiency of the evidence. It appears not only from the testimony of the State's witnesses, but from the testimony of the appellant and his codefendant, that the appellant was Sufficient driving and that he controlled the movements of the Evidence. car in which thirteen gallons of liquor were found. And it further appears, from the testimony of the State's witnesses, the sheriff and his two deputies, that the liquor was "moonshine" or "corn whisky." The appellant's testimony that he "knew nothing about" the whisky found in the car, or that he did not knowingly transport the whisky, merely presented an issue for the jury to determine, from all of the evidence in the case, and the evidence is amply sufficient to support their findings on this and all other issues presented for their determination. Numerous convictions, based upon similar proof, have been upheld by this court. [See State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777, and cases cited therein; also, State v. Williams, supra, and State v. Howard, supra.] The trial court properly overruled the demurrer offered by the appellant at the conclusion of all of the evidence.
III. The appellant complains, in his brief, of the State's main instruction, but he made no such complaint in his motion for a new trial. Therefore, the complaint made in his Instruction. brief, concerning this instruction, will be disregarded. [Sec. 4079, Laws 1925, p. 198; State v. Standifer, 316 Mo. 49, 289 S.W. 856.]
IV. The appellant further complains of the failure of the trial court "to instruct the jury on good character." Such an instruction was unnecessary, and would have been improper, because there was no evidence tending to show Good Character. that appellant's character was good, within the meaning of Section 4025, Revised Statutes 1919, which provides for an instruction on the subject of good character "whenever necessary." True, two witnesses testified that appellant's general reputation "for truth and veracity" was good, but such evidence related only to his reputation as a witness and not to his character as a defendant. [See State v. Hayes (Mo. Sup.), 295 S.W. 791; State v. Marshall, 317 Mo. 413, 297 S.W. 63.] Moreover, the evidence of the appellant's good reputation for truth and veracity should not have been admitted, because his reputation for truthfulness was not attacked by the State. [See State v. Marshall, supra.]
V. Finally, the appellant points to the punishment assessed against him as proof of passion and prejudice on the part of the jury. We find nothing in the record to indicate that the jury were influenced by any improper motive, and the fact Excessive that they assessed the appellant's punishment at the Punishment. maximum amount prescribed by the statute, standing alone, is not enough to justify such a belief. [See State v. Bailey, supra, and State v. Wheeler, supra.]
The information and the verdict are sufficient in form and in substance, and no prejudicial error appears in the trial proceedings. The judgment is affirmed. All concur.