*1 IY. It is further contended that in permitting erred testify witnesses to for the plaintiff who had remained in the court-
room and within hearing of the court after order for the exclusion of the witnesses had been asked for Exclusion of W itnesses.an(j t}ie cour^ had instructed the witnesses not to remain in the courtroom, nor within hearing of the court during the trial.
It was early h'eld in this putting State that the of witnesses under rule, e., i. excluding them from the during pro courtroom gress trial, rests in the court; sound discretion of the and that this discretion will not be interfered with in the absence an abuse [King thereof. v. State, 1 cannot, by disobey witness 717.] order, deprive party of his in the absence of laches or party connivance of the entitled to testimony. [Keith Wilson, Mo. short, In offending may punished witness 435.] be contempt, party but the whose witness he penalized is be by his mlpae. conduct unless he himself particeps be [State Sloan, (Mo.) nothing There is in this record to 1002.] in permitting indicate error testifying witnesses from have been excluded from the courtroom. We therefore overrule this contention. prejudicial
In the absence error the is affirmed. All concur. Bishop Bishop, Appellants.
The State
Division June general complaint 1. ASSIGNMENTS: instructions Instructions. A of error given vague for a new trial too motion and indefinite 1925, page under the Act Laws determining 2. -: there was sufficient evidence to to consider defendant’s Evidence: Alone. Sufficient Defendant’s whether support guilty, proper the verdict of it is not testimony alone, hut the evidence for the State must also be taken into consideration. Whiskey. Transporting -:-: In the trial of a father and son charged transportation with the unlawful of corn sheriff, house, armed with a warrant for the search of the son’s accom- panied officers, public just other met their automobile on the street turning driveway by quick it was cepted into a to the son’s action inter- five-gallon jug it at the rear of the house and found a of corn one-gallon jugs seat, father’s knees and two on the back them, proof guilty, arrested to sustain a verdict of son, although son, father and mounted who was the car and had dis- it, the time the officers reached testified that he drove into ' SupReme [April Term, Missouri, Vol. Court of it, picked five- got out, yard, stopped it, gallon the two went around in front of him, and then jug, it in to the door slid and as his father sheriff, testified that jugs, and further one-gallon and then saw it, had his, and that he interest his father had no the not fixing it, just it. *2 Accessory. having told his son -: —--:-: The father 4. the sheriff had a warrant for the search of his into just the other officers thereupon house, and house, the son’s the five or six blocks to automobile and drove the sheriff rear of the house as their automobile darted into the got the accompanying ran around the house as son him five-gallon jug of the car and out of sitting seat, it was for the knees of to the- father who was on the front say abetting transporting aiding the son in whether the father was whiskey, although picked up and slid the son testified that accompanied stopped, in to his father after the car and that his father had purpose taking his sick wife while him to his house for the transported of care of testify whiskey elsewhere, all. did not at and the father J., 121, p. n. Corpus Juris-Cyc. Law, References: 16 C. Section Criminal 212, 133, 18; 11, 12; 2292, 5; J., 3559, p. p. 931, n. Section n. 17 C. Section Liquors, 541, 3599, p. 271, Intoxicating n. 41. 33 C. Section Section 786, p. n. 52. Dorris, from New Madrid Circuit Court.—Hon. E. P. Judge. Special
Affirmed. Mayes appellants.
Yon
(1)
transporting in-
charging
The information
defendants
transpor-
toxicating liquor
prove
must
automobile,
in an
the State
68;
alleged.
144
specific
Samuels,
v.
Mo.
tation
manner
State
269;
413;
McConnell, 240 Mo.
McGrath,
v.
228 Mo.
State v.
State
305;
Strat-
411;
748,
State v.
Bounds,
v.
262
31 C. J.
sec.
State
S. W.
intoxicating liquor
handling
ton,
(a)
289
The manual
of
S. W.
Transporting upon the
transportation.
does not constitute unlawful
542;
Jones, 256 S. W.
law. State v.
person is not
violation
Breekenridge,
149;
282 W.
411;
v.
S.
Bounds, 262 S.
State
v.
W.
State
1923.,
premises
(b)
of
Removal from
242, Laws
p.
Sec.
transporting.
v.
is not
Warren
part of same
another
Transportation Cases,
429; Liquor
(Tex.)
State, 250 S. W.
890; Ready v.
Fed.
Mellon, 284
423;
v.
W.
Cunard
205 S.
carry-
an automobile
riding (2)
companion,
A
v.
North respondent. Attorney-General, for sistant agree were unable to but each defendant (1) jury found The punishment of each assessed the The court punishment.
upon the (2) 4048, R. S. 1919. The court proper. was Sec. This defendant. demurrer; evi- overruling the defendant’s no error committed guilty. Help- State v. verdicts of to sustain dence 429; Milstead, Bennett, 285 W. State v. 701; ley, Nave, W. 270 S. Thogmartin, W. 270 S. v. Thompson, Yesper, 723;W. 285 S. W. 392. Henke, 285 S. 289 S. was filed in the Circuit Court of information
HENWOOD, C. An jointly with the unlawful trans- charging appellants County Pemiscot whiskey on or about March of corn gallons seven about of portation alleged, first, of terms At different later, against them, of the court judge regular of prejudice County against them. Pemiscot of inhabitants of prejudice County, and after New Madrid granted venue change Supeeme op [HpnZ Couet Missouri, Yol. 317. Term, delay appellants considerable county stood trial before regular judge duly designated another circuit who had been to try the special case as judge. appellants guilty, The found agree failed to judge punishment. special their The assessed punishment imprisonment penitentiary of each at in the for years. two Their being they motion for a overruled, new trial were each accordingly, sentenced appealed. then due time following
The developed in support facts were at the trial State’s case. appellant George Bishop in a lived six-room house city junction northwest section of the Caruthersville at Hayti. corner Third father, highway Street His eight or away, Thomas lived ten blocks at Sixth and Highland carrying a warrant streets. The sheriff had been search Bishop’s days, house for four or five but had made no at- tempt to serve the same because of the serious sickness of Bishop’s evening 6, 1925, wife. On the of March seven and police eight sheriff, accompanied deputy o’clock, and two by George Caruthersville, Bishop’s officers of drove out Third Street highway and, just left into the they turned to the men- tioned, they appellants approaching on Third Street behind them saw automobile, automobile in across drive- in an and saw the turn George Bishop’s sheriff ditch, to side house. The way, over the stopped roadside,. he and the officers ran his car at the other around the house to automo- across the rear of the way going around the going and the other two bile, two around one George Bishop ground, moving They on the from way. other side, seat, and near the driver’s automobile the left in front of the right front seat on the side. father, Bishop, seated Thomas five-gallon glass bottle or Bishop’s legs they found Between back the automobile filled one-gallon jugs glass bottles or found two the back seat or on moment, whiskey. at the crucial happened As what *4 to with com filled coming and slowly “Just as follows: sheriff testified highway Hayti making back to the turn on and Street out Third Third coming up Street and car their left. We seen from our ’ ‘ now, says, I come house, and There side of the in to the daried road, went just around the to the side our car we run and ours.) (Italics arrest.” and made the house “immediately” and stopped his car he that testified He further appellants, and when asked 125 feet” from feet, maybe “about I immediately, said: “As fast as the house if around he went ‘‘ ’’ probably that took testified officers the other ofOne could run. after the appellants’ automobile to get around to a minute” half know, said: “Don’t officers Another stopped. car sheriff’s and right out of the car jumped we time, because very short but went way; around the back could not have been but a little bit.” Tt was dark, after but there light was a street The the corner. driving Dodge sheriff was appellants a Cadillac.
Bishop was referred to one of the officers while on the witness stand young as “the man,” age age but neither his nor the of his father, Bishop, appears appear the record. Nor does it owned the Cadillac. As to all material facts the all four officers was to the same effect. appellant George only Bishop was sole and witness for the testified,
defense. in substance, He went over to his father’s eight house 7:30 or about ’clock and while his father told him o there give sheriff had search warrant for his but did not information; his source of the that he and his father then started for to with wife house where his father was remain while he removed his from the house before intended made; got Dodge search was that before he to house he saw car; thought sheriff’s that he “drove front of him and it was the got “stopped and out crossing yard,” and then and into the picked up five-gallon this in front and the car and went around it in and slid liquor the door ours] [italics father ’’ one-gallon cans; he saw the sheriff that then then the two are;” car, drove the and that “Well, that he said, here they interest in it. On cross- had no his, and his father but was he had not he said examination fixing it.” “just to new in the motion for assignments are found of error Several
I. as general complaint including the assignments, trial. Some of to vague and indefinite given are too instructions of 1925. the Act here under [Laws be reviewable gg. q p Assignments. v. Mur Standifer, 289 W. assign Other Vesper, 862.] rell, 289 S. W. being abandoned, as will be treated reviewable, ments, "otherwise Murrell, 289 W. brief. appellants’ [State S. W. l. c. Kelley, 284 803.] is no substantial there the contention that now to II. come We appellants or either verdicts support for reversal considered ground being the them, this briefing proposition this brief. urged in their Sufficient Evidence. adopted main, has, counsel learned representing the facts Bishop testimony such settled authorities by well established then case, charged. We are the offense a conviction not sustain facts fit the facts they do not authorities, accord these. full Sup. —31. *5 SupReme [April Term, Yol. Court of Missouri, circumstances presented by the State’s evidence, and, therefore, have no application here.
As indicated the recital given above, State’s the the attention of Bishop’s the sheriff had George been directed to house place as a intoxicating liquor kept where was or handled. From the issuance of the search warrant in the sheriff’s hands we as- probable judicially sume cause for this belief had been shown happened and determined. And it that, so the sheriff was “driv- slowly” observing premises, ap- and the house and ‘‘ peared on the scene from the rear and in side the darted to the in quick house” dispatch the Cadillac. "With the sheriff and the gallons assisting him rushed officers to the seven whiskey George Bishop’s and “made the arrest.” With therein car, it admissions that he drove the and that was his there nothing guilt except left for the to infer as to his that the whiskey it was in Cadillac when “darted” across the ditch and the mentioned, in “in side of the house.” The facts to the whiskey (one 5-gallon the connection with the size of containers' bottle jugs) 1-gallon or and bottles or and their location in Cad- two the (the Bishop’s legs part in illac former between Thomas the front back seat of the and the latter in the back the car strong against him but a car), only prima-facie case presented not any hardly other than conclusion the one case which could lead .to jury. reached the significant George story, Bishop it is giving
In his side of the whiskey place his when did not what say from says He himself with put ear, as he he did. contented picked” put front “went statement that he around hardly it is reasonable suspicion house it in car. With his under it may, that as yard. front Be kept the to believe he jury, obviously, that he did opinion, as was strongly arewe carefully glass load get bottles of not have time during the “half a minute” which parts of the car in different them yard ear stopped time he elapsed between clearly a spot. event, this was arrival of the officers far as question so practically the question for George Bishop. against made concerns the case emphasizes the Bishop, learned counsel Thomas As'to George codefendant, Bishop, effect son insists, occupant of the car passenger innocent was an that he cannot conviction him stand. therefore, that the evidence, story a conflict Bishop’s presents Here, again, court, trial court nor for this for the jury, and not which-was Bishop’s impressed likely, Very to decide. had a warrant sheriff search son, report *6 house; bis that he was by the officers still in seated five-gallon with the jug bottle of whiskey securely rest legs, although between his says his son went to the house for the purpose staying with his son’s sick wife, while his son re moved his stock of from his impending- ahead of the search; and, doubt, jury no impressed was also his son’s state by ment on the witness stand that “father the door and slid it in,” referring to his hurried loading five-gallon of the bottle or “just fixing when he was jury it.” Perhaps, con cluded aiding that this evidence of abetting his father’s really point occurred some other trip before the to the house was made. by
As Hjgbee, C., said in State v. Nave, the case of 285 S. W. l. c. large’ upon “The inference ‘looms the evidence adduced State that jointly the defendants were in transporta concerned intoxicating charged tion of liquor, as in the information. The jury discredited as unreasonable the the defendants that gallon jar White carried the half in whisky fruit the bib of his bought overalls the time he in from the afternoon until they ferry.” out of after the ear arrived at the And as said Wal KER, Bass, in where, here, the case of State v. Mo. l. c. as testimony, will not “there is a conflict material greater probative force, which because undertake to decide is of province jury,” this is the exclusive of the fol-
With made reference case presence lowing Corpus appropriate: is “The Juris, from 16 felony is to be of one at the commission of a another aiding determining not he was whether or presence, companionship, abetting. And it has also been held from which and after the offense are circumstances before conduct may be in the criminal intent inferred.” participation one’s (cid:127) question first, whether say, It was for second, automobile; whether charged, is, as ' transportation. Manifestly, in the participated both defendants of these Their failure issues. satisfied the evidence a of the reflects serious consideration punishment -agree on .the (cid:127)to gave approval to the verdicts judge trial part. case on their punish- authority, fixed exercise of by proper and, rendered province to interfere. Some not our situation this ment. effect are found the eases rulings to the same previous of our Helpley, 279 S. W. Bennett, Thompson, Supreme [April Term, Missouri, Coum oe Vol. 317. Finding we affirm proper, the record tbe as no error Higbee Davis, GC., concur. to both defendants. foregoing opinion HeNwood, C.,
PER CURIAM: The All judges concur. adopted opinion of the court. Appellant. S. D. Reynolds, Frank Renshaw v. One, June
Division en- party is not BY JURY: On to Circuit Court. TRIAL may, justice peace because by jury to trial court of titled *7 jury statute, wording a trial peculiar to he entitled by appeal. court the case is taken circuit to which Jurisdiction. -: Law -: Court of Common Statute: 2. (Sec. 1919) declaring in an action 1398, “an of fact issue R. S. statute property, money personal recovery only, specific real or or for must ordered,” jury by jury, reference a trial be waived or a be tried a unless 1865, actions triable all and includes antedates the Constitution of 1875 except jurisdiction, court, possessing common-law other court in the circuit or require equitable an relief of character. such Property. action to An -: and Leased Action to Recover Rents pay alleged unpaid. rents, to failure real estate based recover rents justice peace due, begun and taken a when in the court of court, a appeal to is in the circuit court triable the circuit deny waived, a it is a trial. if error to Estoppel. Expiration Eviction: Title: Attornment: 4. RENTS: Landlord’s landlord’s title has the tenant show that In expired lord action for rents extinguished operation land- of law since the relation of been ground began; on the and tenant cannot defend adjudged by proper action since landlord never had the proper title and had been adjudged began relation have never had title. been to If has began deed the land- action since the relation under which void, the claimed the owner at the time the lease was made was lord to be deny estopped to his landlord’s title his landlord is tenant evicted, unless he or good rightful owner, surrenders he in faith attorns to the or he premises. possession The tenant under a lease from legal the his right cannot remain deny landlord and at the same time that his had a landlord ever premises. to Jury Right Judgment: -: Denial 5. standing Trial: Affirmance. Notwith- tenant, in the action his landlord recover pay according lease, if failure rents to the terms of entitled to by jury him, yet received, trial and such trial was denied rejected, conclusively and the evidence offered and no shows that the tenant had defense, landlord, judgment appeal, for the on the tenant’s will be conclusively right, affirmed. If the facts demonstrate that the appellant action, and that the has no the cause defense to it would be a formality might remand the' barren cause in order have by jury, necessarily judgment. a trial which would result same Corpus Juris-Cyc. Error, J., 3128, p. References: 4 C. Section 1134, 418, J., Courts, 994, Juries, p. J., n. C. Section n. 35 C. p. Tenant, 102, 196, J., 565, p. n. 43. Landlord and Section 1224, 73, 35 C. Section p. 1243, p. 1003, 272, n. n. Section C. Section n. 1114, p. 312, 1145, p. n. Section Section n.