| Mo. | Jun 3, 1927
Information in five counts was filed in the Circuit Court of Johnson County, charging the defendant with violation of the prohibition law. The five counts charged: the first, unlawful transportation of corn whiskey, May 26, 1925; the second, unlawful selling of corn whiskey, December 22, 1924; the third, unlawful selling December 26, 1924; the fourth, unlawful selling December 29, 1924; and, the fifth, unlawful selling January 5, 1925.
Upon application of defendant, change of venue was awarded to Cass County, where trial was had October 29, 1925. At the close of the State's evidence the court sustained defendant's motion to compel the State to elect upon which count he would prosecute. The State elected to submit the case on the first count. Thereupon defendant introduced evidence, the case was submitted to the jury, and verdict returned finding the defendant guilty as charged and assessing his *364 punishment at five years' imprisonment in the penitentiary. Judgment followed, from which he appealed.
The Sheriff of Johnson County, Mason Lane, witness for the State, testified that he attempted to arrest the defendant May 26, 1925. He drove to a store at Robbins, about fourteen miles north of Warrensburg. While standing on the porch of the store he saw the defendant driving down the road. He walked out in the centre of the road and ordered defendant to halt. Instead of stopping, defendant fed the gas and went on. The sheriff was obliged to step out of the way. After defendant passed, the sheriff saw in the back end of his car something which seemed to fill it, covered with quilts. The sheriff fired a few shots at the car, then got in his own car and pursued the defendant for a distance of a half mile to three-quarters of a mile until he lost sight of defendant near a patch of timber. He drove on to Warrensburg where he found the defendant in the custody of a deputy sheriff. At that time there was nothing in the rear of defendant's car excepting the quilts. The sheriff went back along the road and traced the way the defendant had come by tracks in a corn field where he found forty gallons of corn whisky, five six-gallon jars, and one ten-gallon jar. Several witnesses testified to seeing the sheriff pursue Brown, Brown pass into the field, and to the tracing of Brown's car by the tracks it made to the place where the whisky was found. There is no claim that a case was not made out for transporting corn whisky on that day, May 26, 1925.
I. Before the trial the defendant filed a motion to quash the information on several grounds. The court overruled the motion, and error is assigned to that ruling.
It is claimed that the first count of the information is indefinite and uncertain, and does not apprise theInformation. defendant of the crime of which he stands charged. It is as follows:
"Nick M. Bradley, Prosecuting Attorney within and for the County of Johnson, in the State of Missouri, now here in court, on the behalf of the State of Missouri informs the court under his oath of office: That Mart Brown at the County of Johnson, State of Missouri, on the 26th day of May, 1925, did then and there unlawfully and feloniously transport certain intoxicating liquor, to-wit: Forty gallons of corn whiskey: that the transportation of said intoxicating liquor was then and there prohibited and unlawful; against the peace and dignity of the State."
It fails to allege that defendant was transporting intoxicating liquor from any place to any place. Section 19 of the Act of 1923, defines transportation as conveying intoxicating liquor "from place to place." Appellant's counsel seems to interpret that expression *365 to mean that there must be some definite shipping point and some definite destination. In the commercial world, when goods are shipped from one person to another, usually there is a consignor, a consignee, and a carrier. The qualifying words in Section 19, make it an offense to carry the liquor in any container or receptacle of whatsoever kind or character, and by whatever means used, except carrying on the person. There is no limit as to the purpose of the transportation, nor as to the parties interested in it. It includes transportation for the carrier's own purpose. It does not matter where the transportation begins nor where it ends; it is the act of carrying that constitutes the offense. Neither destination nor distance is important.
The information is not open to that objection.
II. The motion to quash complains that the defendant was denied preliminary hearing on the offenses charged in counts 2, 3, 4, and 5, and the court refused to hear evidencePreliminary showing there was no preliminary hearing on thoseHearing. counts. Since the State elected to proceed on the first count, abandoned the remaining four counts, and the verdict was on the first count only, whatever the defendant's rights were in respect to a preliminary hearing, he was not harmed by the ruling.
III. A further ground in the motion to quash was that two or more separate offenses were joined in separate counts in one information. The defendant could not be convicted of two separate and distinct felonies, nor properly be tried forInformation: them at the same time. That each of the five countsDifferent of the information charged a separate and distinctOffenses. offense is apparent; each offense is put upon a different date. Transportation is a distinct and different offense from selling liquor. One might be guilty of both offenses, and although they were in connection with the same identical liquor he could be separately tried and convicted for each offense. [State v. Link,
The question is one of practice — whether the defendant's motion to quash was the proper remedy against the misjoinder of different offenses in different counts in the same information.
No doubt, in case of duplicity, where two different offenses are charged in the same count, a demurrer, or motion to quash, or motion to elect, will lie. [31 C.J. p. 793, p. 812; State v. Flynn, 258 Mo. l.c. 220; State v. Collins, 297 Mo. l.c. 265.]
Where an indictment or information in separate counts charges two or more offenses growing out of the same transaction, or charging the same offense in different ways, a motion to elect before evidence is introduced, will not lie. An election may be required after the evidence for the State is in. [31 C.J. 790; State v. Carragin,
None of those rulings meet the precise difficulty here, where separate offenses are stated in separate counts of the same information. The offenses charged on the last four counts are not related to the offense charged in the first count, nor does evidence in support of such counts tend to prove the offense charged in the first count. The alleged transportation, May 26, 1925, would not be supported by proof that the defendant sold whisky in December, 1924, or January, 1925, as charged. The proof of such sales could not involve the same whisky which was transported later.
No doubt, on motion, the court should have compelled an election before any evidence was introduced. [31 C.J. 790, note 7; State v. Guye, 299 Mo. l.c. 366.] The authorities are in conflict as to whether a demurrer is the proper remedy in such a case. [31 C.J. 820.] Whether a motion to quash would lie does not seem to be considered in the cases cited in notes to that text. We have no doubt that the motion to elect is proper remedy, and on principle a demurrer should lie on account of such misjoinder. In the case of State v. Christian,
In the case of State v. Young, 266 Mo. l.c. 732, Judge FARIS, who also wrote the Christian case, held a motion to quash would not lie on account of the unwarranted joinder of counts in a single information, especially in view of the fact that an election to go to the jury on only one count was actually had therein. In that case each of *367 the two counts seemed to charge the same offense. The court should not permit a trial to begin or proceed when an information is in the shape presented here. At the beginning of the trial a motion to elect would have been proper and should have been sustained. The defendant, however, at that time did not move to elect, but did object to the introduction of any evidence on that ground, and it was error in the court to overrule that objection. That error is not saved in the motion for new trial. Under the ruling in the Christian case, supra, it was error to overrule the motion to quash, but it is not necessary to put a reversal upon that error because the matter may be disposed of for another reason, which will appear in the next paragraph.
IV. The trial proceeded, and the court, over the strenuous objection of defendant, admitted evidence tending to show that the defendant had bought and sold liquor; evidenceRefusal to which would tend to support one or more of theWithdraw charges in the counts 2, 3, 4 and 5. At the time theImproper evidence was offered there had been no election, andEvidence. all counts were before the jury for consideration. At the close of the State's case, on the motion of the defendant, the State elected to proceed on the first count. Defendant's counsel then asked the court to instruct the jury to disregard all the evidence relating to the other four counts, especial the sale of liquor by defendant. The court failed so to instruct. Again at the close of all the evidence the defendant requested the court to instruct the jury on all phases of the law involved in the case, especially respecting the evidence that the jury heard on counts 2, 3, 4 and 5, that they should not consider it in making up their verdict. The court in response to that request, instructed the jury as follows:
"6. The State, by the information in this case, charges the defendant with several separate and distinct offenses. The State has elected to proceed in the case upon the first count of the information charging the defendant with the offense of transporting corn whisky, and with the offenses charged in theother counts the jury will have nothing to do."
The instruction merely apprises the jury that the State had elected to proceed on the first count, and with the offenses charged in the other counts they would have nothing to do. There is not a word in the instruction directing them to disregard the evidence which was produced through the trial showing the defendant had been selling liquor at different times. That evidence was most damaging to the defendant. The error in refusing to instruct as requested in that respect requires a reversal. *368
V. Appellant complains of unfairness on the part of the prosecuting attorney in the conduct of the trial. We think, however, that the matters complained of on that head probably arose through irritation caused by the vigorous contest in defense, and will not occur in another trial if the court limits the evidence strictly to the issues to be determined.
The judgment is reversed and the cause remanded. All concur.