*1 any liqnor lawfully or manufactured, place and has no in the- case. only question The by whether, is incorporating it instruction, likely it was jury. to mislead the That instruction does not au- a verdict; thorize simply is terms, definition of a classification liquors. of intoxicating presumed A jury is composed persons of average jury intelligence. that, was This instructed they order to defendant, convict find transported must that he moonshine, liquor. hootch or as a distinct kind of The instruction could not have misled them. Complaint
VII. of other instructions. The court eor- made
rectly “transport,” defined the word and correct- ly presumption of instructed the as to the in- throughout nocence which attended trial, credibility and as to the of witnesses. Appellant complains VIII. the refusal of certain instructions by offered tbe Instruction the effect defendant. He offered unless tbe not be convicted defendant could beyond
they the “said found a reasonable doubt that whiskey, hootch, liquid moonshine, corn in evidence is they acquit they find, unless and so should defendant.” should liquor was if that, effect of which defendant the instruction is hootch, somethin," else charged transporting with was besides acquitted. There was not moonshine, then the defendant should be liquor trans- any was slightest other kind of base such ported. upon which to there no evidence Therefore instruction. refused, defines Instruction offered the defendant h°°tch, whiskey, illegally moonshine whiskey; given B tbe Instruction manufactured completely more gives in same definition but
court effect clearly. Instruction of bis Appellant complains tbe refusal further B B3. by instructions points which in all covered proof sustain ample there The case was well tried and judgment ap])ears in record. and no error the conviction All concur. is therefore affirmed. (2d) 11. Appellant. S. W.
The v. Gus Howard, Two, 1929. December Division *2 J. Whitecotton, Boggs, Wright, ap- H. Jas. E. J. W. Jr., for pellant. *4 Whitehill, Shartel, Attorney-General,
Stratton and Hibbard C. Special respondent; A. Attorney-General, Assistant for J. Walden of counsel.
ISO Court Circuit convicted in the
COOLEY, G. Defendant hootch, moon- County transportation felonious of the B.oone in the years’ imprisonment whisky, shine, corn sentenced to two Randolph was committed appeals. The offense penitentiary, and County Court on Boone Circuit the case reached the County, and a motion to the trial defendant filed venue. Before change a hearing thereon, after evidence which, evidence suppress certain quash the a motion Defendant then filed court overruled. assigned as rulings These are was overruled. information which later. will considered error and sufficiency challenges the Since defendant ver- or to sustain the case to the submission of authorize detailed make somewhat appropriate it will be guilty, dict showed, in the State evidence for facts. The of the statement following: substance, the Randolph Cairo, resident of Hughes that he H. H. testified morning in Moberly way Missouri; County, that on automo- Ford roadster in a passed he was question *6 thirty hour; going bile about miles an about a mile further t^at on he saw car its right- defendant’s side in the ditch on “the side) (west road; hand side” of the that defendant’s car was not sight passed out of his from the time him it until went into the ditch; that he if hurt asked defendant he were and wished town, replied negative taken to in and defendant and asked witness garage to send out someone from a him. saw Witness present. no one leave car defendant’s and no one else lie noticed something dripping from rear of defendant’s car end and smelled an odor about car of the same odor as that which.was jugs him contents two were exhibited at the trial. jugs their by with contents were shown other evidence to have been in car at defendant’s the time. coming cars along witness,
Two were behind one of driven which, by a Mr. Woods, stopped on, at defendant’s and then came car, passing All stopped witness who had see if he a flat tire. had Randolph things by him, Hughes happened in testified, detailed County, of defend- Missouri. We mention the latter because fact proved. ant’s contention the venue was not Randolph County, Y. L. Sheriff of testified McCanne, then morning was Mr. Woods he Huntsville and was called at and notified that there was a there on the road with some man out immediately scene, finding in car whisky, and went his to the lying defendant’s Ford roadster on its side in the ditch on the Hootch, whisky side of the corn was west running road. moonshine or strong hootch, and there was a odor out moonshine whisky Ray Meyer, or corn around the car. Defendant one taxi-driver, were there. Defendant intoxicated. He and doing something Meyer end, shell, at the back were turtle Meyer, in which was- locked. defendant’s ear, pres- defendant’s ence, had out after defendant. said he come finding
McCanne arrested defendant and then searched him, half-pint upon moonshine, him a bottle about one-fourth full of ignition key car, key for a an Ford and a that un- whisky, compartment getting locked rear of defendant’s car. After compartment righted, witness unlocked the said the roadster five-gallon jugs liquor with which wit- found therein two filled pronounced whisky. moonshine and corn There was another ness spilled broken, burlap in a and the had over jug, sack contents jugs leaking the car. Witness unbroken and wrere two continuously jugs, kept possession unbroken them took of the two unchanged custody produced with contents at his them they trial, and were introduced evidence. had who place arrest defendant asked McCanne At over, (defendant) saying that him so he turned
called soon after “got man him got lie a little to drive and this had fuy.” stayed gone somebody he himself fellow had on to send back while you you “1 saying guess satisfied, with the further: are ear, and caught me.” not clear these remarks were It is whether made place under placed defendant before or after he arrest. The Eaudolph County, Mis- witness found where car *7 souri. examined and tested
Witness McCanne testified that he the con- jugs mentioned, liquor was tents of above and the the two that .whisky, proof by one hootch, moonshine or corn hundred the specific gravity containing fifty per about test and cent alcohol by volume. Four other witnesses for the State examined the whisky. jugs in two and testified that it was corn Sever- liquor the smelling tasting it, in had witnesses, al of addition to and if it would burn found would. De- that, tested it see and objected qualification testify fendant to the of these witnesses to objection liquor was. will be discussed as to This later. what testify. a did not He called as witness a chemist to Defendant samples liquor submitted of from jugs whom had. been the two and analyzed analysis it and that who testified he had showed whisky; liquor, ivas a but was de- it was that it distilled fruits, liquor from rived from and that distilled fruits is not called brandy; whisky grain. whisky, but is made.from assignment error is I. Defendant’s first of that the court over- suppress evidence, jugs liquor the two of viz., ruled his motion to. in car after his arrest. The sheriff had no found warrant, arrest and no search defend- warrant for defendant’s liquor of search the car and seizure of the contends that the ant probable and -without cause and therefore were unreasonable rights 13, defendant’s constitutional under Section violation of fourth II, Constitution, the State and the amendment to Article 25 Act Constitution, and in violation of Section of the the Federal page 244. ITe cites no authorities. 1923, 1923, Law's upon ap- motion which it heard evidence from The court by telephone by Mr. Woods peared had been called that the sheriff place designated, found defendant immediately went to in the ear condition with his overturned intoxicated there in an whisky running out road and still side of the ditch at the liquor pervading car, smell compartment of the locked apparent have been car had atmosphere. It must ditch, being and the recently into the defendant very been driven intervening receipt between the sheriff’s time intoxicated being short, the scene so from and his arrival on call Woods of the ground for the sheriff believe that de-° reasonable there thereupon car driving his while intoxicated. He been fendant had
153' arrested defendant. search and seizure Tlie made were after a Driving felony. arrest. car while intoxicated is a “The rule this may State is that an make an officer arrest without a warrant ground when has suspect he reasonable person that the arrested felony.” has Bailey committed a v. 8 (Mo.), (2d) S. W. [State 57, and cases cited.] Bailey
In the case the officer telephone was notified that the ear driving, therein was in a certain direction with liquor in car, description his and a of the defendant and his car given, from which the recognized officer man ar thereupon rested him and searched car and found and seized liquor, A suppress was used evidence. motion to properly evidence was held other cases and overruled. The among court cites States, quotes v. 267 U. Carroll United S. 149, 790, Sup. Ct. Ed. A. L. R. L. where in it if is held that the search and seizure without warrant are upon probable upon belief, made ing cause, is, reasonably aris seizing officer, out known circumstances an auto *8 by mobile or subject other vehicle that is to contains which law destruction, and seizure the search and seizure are valid. also [See 1030, Pigg, cited; Thurston, v. 278 S. State W. State v. and cases 300 W. S. 485.] 25, 1923.-supra, Defendant’s reason for Section Laws invoking is provides not clear. of war- That section for the issuance search proceedings rants and unless de- and is here involved thereon not proviso contained fendant’s counsel had in mind the therein be prevent the section should construed to an officer whose not duty arresting, warrant, it is with without to make or arrests any provision any act. violating provision found the That one of deny right limit an was not to and does not or of intended felony rule above officer for without warrant under the to arrest prop- to. think suppress referred We the motion to erly showing stronger right to ar- A sheriff’s overruled. of the on made rest defendant and warrant search ear without "was trial, being foregoing facts it shown to there in addition suppress, hearing the sheriff shown on the the motion to of liquor dripping car recognized the from defendant’s smell of the, hootch, whisky, transportation of moonshine or be.that objection only felony. this evidence of which is Defendant’s ground at trial on was not shown to McCanne liquor. qualified testify of be to the character as validity of information on the II. Defendant assails any ground and that “act is insufficient to state offense being act” which is are void and sections of the under drawn as of TV 28 of the State in violation of Section Article Constitution 154 in- vague
and that and the section of the statute involved is so definite that it defines no offense.
The Gus information, omitting parts, charges “that formal County of eighth day September, 1926, of at Howard, knowingly, Randolph then and Missouri, and did there State wilfully feloniously transport quantity ‘hootch,’ ‘moon and shine,’ against dignity of whisky,’ peace and ‘corn and 719, cases S. W. Knight, State.” cited; is v. 300 It [State sufficient. 125; 296 W. State v. Card Brown, 361, State v. 317 Mo. S. Bailey, v. well, cited; 312 279 State 140, 99, Mo. S. W. and cases Supra.] require is the IV
Section
of Article
of the State Constitution
shall
subject which
ment
than
that no bill shall contain more
one
clearly expressed
defendant.con
particular
title.
In what
its
charged
he is
ceives
the act
thereof under which
or section
inform
invoked, he
provision
does
violates the constitutional
power
police
of the
us'. The title of
“the exercise
the act embraces
manufacture, pos
through
prohibiting
state,
of the
the.
liquors;
intoxicating
transportation,
disposition
session,
sale
.
etc.
act,”
this
prescribing penalties
.
for violations of
.
21,
transportation
under
subject
Section
denounced
drawn,
clearly
in the. title
expressed
the information is
heretofore,
act
by this court that
has been
held
the act.
It
IV, of
State
question
Article
is not invalid under Section
(cid:127)
subject.
State v.
containing
more
one.
See
Constitution
than
826;
their was for the to determine. v. Marshall, [State Wheeler, 63; (2d) 297 S. W. 777; Moore, State v. W. S. State v.
IV. in Defendant error the refusal of to sus- the court tain his give directing demurrer and to an instruction a verdict 8'uilty. proved
no^ asserts that the venue was not testimony tending and that there was no substantial prove liquor jugs in the offered in evi- two hootch, moonshine, whisky. dence was corn have set out We assignment in fully substance of the evidence rather with this mind, repeat regard ample and unnecessary it is as it. We jury take case to to sustain verdict. assigns
V. given Defendant error several the instructions request at the state. Instructions 6 are numbered particularly They as are stressed erroneous. as follows: jury you
“1. if The court instructs the find and believe County beyond reasonable doubt that at Randolph, Missouri, any the State at time within three years day next the ninth of September, 1926, defendant, before Gus Howard, tinlawfully hootch, feloniously transport any did you whisky, guilty will moonshine or corn find said defendant you you acquit find will- . . .” unless so said defendant punishment. of the instruction remainder relates to “2. term ‘hootch, court instructs that the moon- whiskey’ or used in shine the infox-mation and these illegally any whiskey, re- instructions, distilled without means *10 gard to the material or materials distilled. may same be
156
“6. jury presumed instructs court that the defendant is upon prove guilt innocent and it devolves the State to beyond a reasonable doubt. such a But doubt to an authorize acquittal ground on that alone should be a substantial doubt of guilt arising from the evidence in the case and not a mere pos- sibility of innocence.”
The contention as to Instruction No. 1 is is that it broadens the by sues “or” whisky,” use of word “corn before words jury indicating hootch, whisky to the moonshine and corn different are substances and that it tended to confuse proof ^ie being “there no substantial trans (cid:127)1UXV portation hootch, whiskey.” corn moonshine, This contention seems from brief to be defendant’s based upon hypothesis that “the used in the information are words supposed disjunctive synonymous charge to be did not warrant by
submission instruction that could the defendant guilty ‘hootch, transported be found if he had moonshine or corn ” whiskey.’ “hootch,” “moonshine,” That the words and “corn whisky” synonymous are not was in State v. 312 Pinto, decided Brown, 78, Mo. 144, overruling 279 S. W. v. Mo. point. Kroeger, S. W. on See v. 13 W. also State S. (2d) necessarily whisky 1067. ITootch and moonshine are not corn though illegally whisky all com moonshine. v. distilled is [State transportation Pinto, supra.] charged But was and but one act proved. one the whisky. proof The information is sufficient to authorize
liquor transported hootch, was either moonshine or com liquor in describing One all three terms. witness used whisky. Others it within therefore, called corn Instruction proof not the issues made information and the and was erroneous. ground it complained Instruction does not moonshine, hootch, whisky.
properly in- define corn Under this liquor struction the have to find that uvas would ,hootch whisky, distilled it Avhich event megaijy or moonshine Avhether made from or some other material. While far applies the definition is not accurate in so com ¿n whisky, prejudicial it could have been to defendant this case. transported The verdict Avas a finding liquor Avhisky and AAdietherit or corn hootch, moonshine Aras proof. AAÚthinthe think terms of the information and We rights giving prejudiced were no wise Instruction 2.
157 Instruction 6: is ground assailed on the that it does not suf ficiently define “reasonable and in support of this con- doubt/’ defendant cites statute, the Section 4025, Ke tise'd 9; Statutes 191 State v. Owens, 79 619; Mo. Clark, v. 147 47 Mo. 886; S. W. State v. Douglas, 258 Mo. 167 S. 552; W. State v. Nerzinger, Mo. 36, 119 S. W. 379. In the Owens1Case the words “substantial doubt” Were qualified by further the word! “real” before “substantial,” thus requiting a doubt, to authorize acquittal on that ground, to be' a real substantial doubt The use of qualifying adjective the “red!” Was pf&pe’rly court, criticized although the the reversal of the case Was c/ii grounds. Other In only the Clark the case ref to erence reasonable doubt inwas presumption instruction on of jury innocence which told the that presumption such entitled acquittal to unless jury satisfied of guilt beyond doubt, a reasonable “as defined in these instructions/’ instruction defining There was no other reasonable doubt nor, subject. apparently, referring judgment to that was reversed for failure’ In to define reasonable doubt. properly the Douglas only case' the' referring instruction to reasonable doubt Was the iipóti. subject good one and it was character,' said by the subjects court good Wended the that that instruction so any character Slid the effect reasonable minimize to doubt' as should entertained, doubt the that there have jury have nidf. jury be unless specific been a to effect that instruction that defendant reasonable doubt lieved a beyond from the evidence Nerzinger ease the court In the guilty acquitted. he should be doubt in this reasonable gave on approved instruction tlxe often you evidence, have “If, upon form: of all consideration acquit; but you should guilt, reasonable doubt of the defendant’s ought to be ground, that acquittal an a doubt to authorize possibility a mere not guilt, substantial of defendant’s doubt embodied instruction that that said his innocence.” The court cases; criminal doubt the true reasonable doctrine to instruc to adhere is better canonized; had become almost tbat definitions; attempt not “and approved tions that have been terms.” understood well meaning nothing add in the dis made were Nerzinger ease above observations in given' instruction an contention cussion of the defendant’s prop not did doubt reasonable term defining the the trial court erly define it. standing numbered instruction In State’s instant ease specifically it does alone, justly is criticism subject to the acquitted unless he should inform jury that defendant Douglas, v. guilt doubt. [State proved is a reasonable beyond in that mis-direction than rather supra,] is But that non-direction supplied
instruction and the in other omission is In instructions. jury upon Instruction the facts hypothesized, told based, which alone conviction can be must be found from the evi- beyond you you dence a reasonable doubt and “unless find so acquit will given said And in an instruction at de- defendant.” request fendant’s presumed is told that defendant is upon be innocent and the burden State to establish rests *12 guilt beyond his doubt; a that: “If all the reasonable you beyond guilty defendant believe the a reasonable your duty you it doubt it is convict him. If do not believe to so your duty acquit him.” no other instruc-’ to Defendant asked they tion.' Considered as must the instructions suf- together, be, ficiently subject cover the of reasonable doubt. by appellant point
We have cited discussed the decisions this because particularly Clark, .supra, those State v. have decisions, recently coming authority been in cited other cases this as to court for the contention doubt” should be that the term “reasonable way defined in usual- further or some different from the instruction ly quote given, Nerzinger which we from the case. The above enjoin- statute does not the court shall reasonable define only subject. but doubt, shall instruct on that State v. Clark, supra, in does not that an instruction the form above hold quoted approved Nerzinger and which in was the case would be if insufficient, and it did so hold it would be out of line with the court and since decisions this both before it was written. urges recep- VI. error Defendant committed in the by fixing punishment and the of the tion the verdict the court. case, jury about 2:15 The submitted to the the hour of p. p. m., jury having reported, 5:40 About not court m. inquire jury they if directed the sheriff to of the had upon jury
agreed
verdict. The
directed
sheriff
a
they
agreed upon the
inform the court that
had
to
punishment
guilt
defendant,
agree upon
but
could not
being
message
punishment.
to
This
desired the court
assess
jury
by
to
reported
caused the
to the court
sheriff
court
being present,
brought
room,
there
the court
defendant
into
they
upon
guilt
had
inquired
a,greed
them if it was true that
agree upon
punishment
but could
and desired
not
speaking
jury,
it. The
for the
foreman,
the court to assess
answered
interrogated
The court then further
that such was the fact.
body
jury
the members of
and was assured
it was
upon
agree
punishment
and that
impossible for them to
time
for the
allow further
for delibera-
be useless
court to
would
jury
Thereupon
gave and read to the
in-
the court
further
tion.
guilty
found defendant
jury
but
if the
effect that
to
struction
might
stating
punishment
verdict so
upon Ms
agree
not
could
present-
jury
room and
jury again
to
retired
be returned.
following
“We,
jury,
verdict:
open court'the
ly
in
returned
cannot
have failed and
guilty
charged, but
find the defendant
Foreman.”
ver-
agree upon
punishment.
his
Bright,
Joiin.M.
discharged
de-
received,
and the court assessed
dict was
imprisonment
peniten-
in
punishment
years’
at two
fendant’s
trial had
tiary.
motion for new
been filed and
After defendant’s
with the
pronounced judgment
accordance
the court
overruled
n
punishment so assessed.
and the
verdict
7 Mo.
v.
State,
502, and State
upon Fooxe v.
Appellant
relies
support
S.
contention
32 W.
130 Mo.
Gilbreath,
con
erroneous. Those cases were
court
that the action of the
There are some errors sufficiently specified bring trial, for new of which are some in the of which are not stressed them here for review and some assignment them as merit discussion brief. Such of of errors and re- find no We points are hereinabove discussed. included judgment Davis and is affirmed. versible the record. error (7(7., Henwoocl, concur. adopted foregoing C.,
PER opinion CURIAM:—The Cooley, opinion concur; J., White, J., Blair, as the court. P. J.,
Walker, absent. Appellants. Blankenbaker, v. Robert Evans John (2d) 23 S. W. 152. Two, 11, 1929.
Division December