*1 SuрReme Missouri, You. responsible the other also is for the homicide. But if one resorts to only is deadly weapon knowledge consent, he without the other’s Porter, thus c. Darling, liable.” l. [State Law, quotation Bishop Mo. l. c. is from Criminal 394.] quoted to in the Por approved Darling case, and and referred if aided Shade, he Odbur. ter ease. That would exonerate even encouraged Odbur nothing show Shade even But is there through. en- fight all After second fight. It was his Odbur’s seeking given further trouble with appeared up that he had counter it Nelson, encourage- and from "Willett, met Cozad and until Naturally presence he went back with them. Shade ment of their i aiding abetting than along. and at that time He was no more went along purpose All of went for them and Nelson were. Cozad entirely insufficient to fight. The evidence is authorize seeing a fair is degree. for murder the second There Shade a conviction of indicating any that he fatal con- intended nothing in the evidence encouraged time, or that he or aided Od- at sequences any Willett injury upon any serious Willett. to inflict any purpose bur in affirmed, Shade it is is reversed to Odbur and judgment as All concur. remanded. and Kurtz, Appellant. S. W. v. John Two, 3, 1927. June
Division By Mooring Mississippi Boat. River: Territorial: 1. JURISDICTION: by acceptance (3 546) Missouri Congress and the Stat. U. S. Act of jurisdiction defined, boundary by over has concurrent of Missouri the State intoxicating transportation River, and therefore county may prosecuted the Missouri liquor river be boat boat; by oust the lines, extended, waters traversed embrace the if whose ap- mooring does not shore and the boat jurisdiction prosecute county the offense. propriate of its Missouri Remedy. Felony To Misjoinder: Misdemeanor: and INFORMATION: 2. join and counts same indictment or information in the may error; taken ad- be charging a and the misdemeanor is counts vantage arrest; complaint of the or motion in of either trial, a new misjoinder may preserved motion for review in the for (Laws 1925, p. a motion in arrest has now substituted for which been 4080). sec. Liquor: Intoxicating Manu- Transaction: -:-: Felonies: Same 3. facture Transportation. charge informa- in the same To the defendant felonies, in- separate manufacture two one the tion with distinct liquor, intoxicating toxicating liquor transportation other Only transaction, though they grow such felonies error. out of the same cognate joined are so far transaction and as arise of the same out prosecution to a acquittal or for the one would be bar that an conviction the other. Kurtz. LIQUOR: Transportation: Years before Offense. Two INTOXICATING 4. In the cating liquor and the in unlawfully transporting intoxi- charged with trial of a defendant by barge the existence a still evidence of intoxicating owned on a manufacture of offenses, June, 1923, or the same relate to the same transactions does not incompetent and harmful. and is *2 making Effective. The -: -: Before Statute Became statute 5. liquor transportation intoxicating of did not manufacture offenses 25, 1923, effect and evidence observed into until June that in his was June, transporting 1923, incompetent operating trial for a still in is liquor in 1925. 1923, 25, -:-: Limitations: Misdemeanor. Prior to June 6. statute madе the manufacture or misdemeanor, intoxicating liquor transportation of applicable period and the limitation is misdemeanors charged transporting year, defendant, and evidence that with the by intoxicating liquor July, 1925, 1923, June, boat wad observed to be by him, incompetent. operating a still on a owned was Transportation. charge -: that defendant trans- 7. porting intoxicating liquor that To sustain by show boat it incumbent State to he, agents employees behalf, possession or his in his boat, operated transported by means of boat; any and the evidence in this case fails to establish such transportation. pint liquor grip 8. -:-: owned Possession. A in a found on a boat defendant cannot be to him where neither his grip nor his connection with it is shown. By Ownership. -:-: 9. Boat: Defendant convicted not be transporting showing boat on a mere that he owned the boat. Ownership: Presumption. 10. -:-: Possession: Possession of a jug of found on the shore near where moored defendant’s boat was presumed ownership cannot be from his mere can Nor boat. presumption transported jug upon further that he the boat be based presumption possession. on such Juris-Cyc. Corpus Law, J., 215, p. 168, References: Criminal 16 C. Section 99; 967, 520, p. J., 96; 970, 521, 12; n. Section p. 1173, n. Section n. Section p. p. 16; 605, p. 56, n. 3330, 5; 17 3662, 320, C. Section n. Section n. 36. Informations, J., 351, 3; Indictments and p. 784, 31 C. Section n. Section 786, p. Intoxicating Liquors, J., n. 28. 58; p. 33 C. Section n. 541, p. 786, Section n. 52. Appeal from New Madrid Circuit Court.—Hon. Dorris, Spe- E. P. Judge. cial AND REVERSED REMANDED.
Sharp & Baynes and Gallivan dk appellant. Finch for (1) The court erred in requiring not State to elect on which count of proceed information it trial; in overruling also defendant’s to require motion election both at the close of the State’s case and at close the whole case. a misjoinder There is of counts SupReme Yol. 317. Missouri, Stаte, v. 353; Hilderbrand 31 C. see. J. information. 955; State W. 9; Guye, v. S. 313; 3 Mo. State State, Storrs v. Mo. (2) TLe Prestar, 142. Link, 12; 290 S. W. 286 S. W. State v. v. jury under the law refusing to instruct
court 'erred requested guilty, as they the defendant must find close of the and at the case the close of the State’s defendant at case, support strong, will not matter how (a) Suspicions, no whole Johnson, 207 Mo. 588; v. State Miller, Mo. a conviction. State v. 170; 237 Mo. 671; Young, State v. 346; Francis, 199 Mo. v. State 627; 422; Hollis, State State v. Mo. Bailey, v. State 963; v. 411; 289 W. State Clark, State S. Pope, 269 S. W. v. v. 637; Woodson, Ballard, 104 Mo. State v. Ridge, 59; State v. (b) 672. is not 393; Scott, v. 177 Mo. There App. 175 Mo. whiskey. liquor found was moonshine proof that the sufficient (3) 568; Gatlin, 267 S. 289 S. State v. W. Stratton, W. bring in telling a verdict of court erred punishmentí State, 7 assess the Fooxe v. Mo. and that he would . '(á) 242 W. Gilbreath, Hubbs, S. *3 permitting witnesses, Eakins, Dick Dick erred in Smith The court seeing Robbs, to the defendant testify Lawrence on a boat on offense, still, long previous alleged which there was to the date оf the alleged and to with the defendant. conversations That would in no prove charged. of the manner the commission crime State v. Pres- 290 lar, S. W. 144. Gentry, Attorney-General, respondent.
North T.
(1)
position
The defendant is in
complain
no
of the
of
failure
the court to require
the State to elect
which count the State
ask
a conviction of
defendant,
only
as the defendant was
convicted on the second
If
count.
the defendant had been convicted
on
counts,
two or more
this court has held that he could then com-
Prestar,
plain.
v.
State
ror committed to state punishment and failed agree on the jury failеd to 1919; State 4048, R. S. be. punishment should Sec. verdict what the trial does (4) motion for new Defendant’s Rollins, Mo. Act hence court requirements of not conform giving court of the trial cannot or review the action consider nor in sustain defendant’s instructions the refusal to Standifer, 1925, p. sec. the evidence. Laws (5) justify S. W. 856. sufficient to a conviction The evidence was of the defendant. Prosecuting Attorney of
DAVIS, August C. On County New Madrid information filed the circuit court verified fеlony four count with the counts, defendant in the first unlawfully manufacturing intoxicating liquor; count, in the second unlawfully transporting with the place County place
an unknown in New New Madrid to a certain County by Madrid Mississippi River; means a boat in the count, unlawfully third possessing still, with the misdemeanor etc.; count, pos and the fourth unlawfully with the misdemeanor of sessing intoxicating liquor. Upon application defendant, the court granted change Dorris, Hon. special judge, оf venue and the E. P. in, during called who sat the trial. The court sustained a de murrer to count, objection the evidence as to the first but over the exception of defendant, requesting on motion an election, go court allowed the to the jury cause to on second, third and counts, instructing fourth jury, however, that a verdict of only be returned on count. returned and agreed upon guilt informed the court count, second but agree punishment. were unаble to The court said: “Then you agreed back and write down what on—write out. We the *4 jury find the guilty charged defendant as in the second count the agree information but cannot punishment, on I will attend to that.” jury retired and with following returned the “We, verdict: the jury, in the defendant, above find entitled cause Kurtz, John guilty charged as in the second count of the information and we do assess -punishment agree his punishment.” at Failed to on The court then that, permission stated with jury, the of the he would correct the ver read, “We, dict to jury, the in the above cause, entitled find the de fendant John Kurtz as in the second count of the information and agree we do fail punishment.” to After the polled were the punishment court fixed the of defendant at a term in Penitentiary the years. for two From the judgment thus conformity entered in therewith, duly appealed. Term,- Supbbme Missouri, Yol. following facts. the sanctions part of the on tbe suspicious information 1925, upon undisclosed day On a the across by boat deputies traveled and
circumstances, the sheriff found tied and there County, Madrid New River, opposite evi- State’s think the as we Kentucky shore, willows on the to some nine- barge about a river, floating in the discloses, unqualifiedly dence propelled boats, motor two width, and ty twenty feet long feet and and barge between twelve at the approaching engines. On Ford outforms of to the holloed the officers night, one of the one o’clock purpose answering ascertain the discerned, and one two men forthcoming officerswas that from the holloing; reply the man and upon which the men broke outfit, look over the sheriff wanted men was never identity of the in the underbrush. disappeared identity a referring to came from only evidence ascertained. The short, small a rather of them was the effect that deputy sheriff to taller; heavier and a little a little looked to be and the other man defendant, compared with of the men hardly how either that he knew good you enough not see exactly large, could how you could not tell something size. near Mr. Kurtz’s men was exactly of the to tell —one shore, adjacent bank, river was found There equipment found, placement permit the freshly cut to willows one-hundred-pound sugar, thirty sacks of about consisted of which portion seventy barrels, of which had had mash in cooker, about whiskey, equipment. and other worm, jugs of moonshine still, them, cut; they found as thick as place were willows were no other In leading path clearing. was found from the An possibly grow, and no related, lights the incident were seen about hour or so before barge furnace, was found a brick place from New Madrid. pint pint whiskey of moonshine and a half in a tester sрlashed that mash had grip. was some evidence There barrels barge. replevied barge Defendant claimed and on the deck of the barge high, were about six motor boats. The sides feet recently had been covered we infer was without a cabin. slight depression dry It weather. There was a between bank Kentucky bluffs, stage boats were tied and the but where the it took a thirty depression, is, feet of water overflow the a flood stagе. previous At four and six o’clock evening between no barge place at or boats were seen sheriff found them. objections exceptions defendant, permitted
Over the court State, two for the Dick Eakins and Dick Smith, witnesses testify Simpson’s chute, at defendant owned a covered barge, it, barge whiskey with a cabin on on which being made; that a worm seen on resembled the worm and the cooker was about same size the one intrоduced in evidence, but it was *5 known whether were the same. defendant had a fleet y. Kurtz. 192V] engaged in the sand was River, and he Mississippi on tlie
of boats of the river. bed gravel business, pumping introduced testified, the State rebuttal, had defendant after bad, morality for but it testimony tending his character to show he had had with his trouble based on some developed that this was morality bad, reputation for testified his wife. One witness who veracity as well as reputation fоr truth that his also testified honesty good. hired boats tended to show that he
Defendant’s before, was in of them. Hesslinger a weeks who Jim few Hesslinger tes- They delivered at Cairo. Some few witnesses were still furnace, was no or fur- previous, 20th there tified that June manufacturing barge whiskey. fit for equipment on "the use ther Hesslinger showed that Both the State’s and defendant’s evidence County, Kentucy, stealing in Fulton had sheriff indicted of the matter is not boats, but what became further shown. Such appear in germane, any, if will a discussion other facts are treated. matters By
I.
virtue of 3 United
at Large,
States Statutes
acceptance by
of the -boundary
defined,
Missouri
thus
its ex
within
lines
jurisdiction
tended
this State has concurrent
over Mississippi
transporting intoxicating
River.
it follows that one
Territorial
liquor by
prose
boat on the
River
Jurisdiction.
county
which,
cuted in the
the confines of
if ex
tended,
comprise
the waters traversed
the bоat. That the
appro
was moored to the
shore failed to oust the
priate
county
jurisdiction
prosecute
Missouri
of its
the offense.
Line,
[Sanders v. Anchor
97 No.
3 L. R. A.
Commonwealth,
Ky. 480,
Ky.
Lemore v.
L.
Mullen,
Iowa, 199.]
counts,
II. The information
contained foui~
two of the counts
charging felonies, and two misdemeanors.
The court sustained a
manufacturing
count, letting
to the evidence as to the
charge
transportation,
possessing
Misjoinder.
still, etc., go
jury,
instruсting
jury, however,
to the
guilty
oniy
that a verdict of
be returned on one count. There.
count, cMrg-
after the
returned a verdict of
on the second
ing transportation.
At both the close of the State's case and the
require the,
whole case the court denied motions
jury.
to elect on which count it would
Sup.-25. n
*6
Missouri, Yol. 317.
SUPREME Court
indictment
join
in tlie same
practice
counts
Under our
it is error to
State,
v.
charging
information
and misdemeanor.
[Storrs
may
It
Statе,
9;Mo.
548.]
Hilderbrand
Felony and
or motion
advantage of either
taken
be
Misdemeanor.
an(j
joinder
complains of the
-n
arreS£
mo-
for the
has been substituted
a new trial which
in his motion for
preserved.
question is
p. 198),
(Laws
4080,
1925,
tion in arrest
sec.
joinder
constituted error.
sep
charged with
However,
appears
it
that defendant
further
manufacturing
separate counts,
arate
in
that
and distinct felonies
as to
it. The evidence
intoxicating liquor,
transporting
and that of
respect
necessarily
germane with
one
not
Two Felonies.
with
may
otiler,
manufacture
£0 ^
for one
manufacturing
transporting
may transport
without
it.
out
it or
may
separate
He
in
indictments
proper procedure
be convicted under
offenses,
informations and
both
are not
sentenced as to
cognate.
prove
proof
probably
as to
not
one would
tend
joinder
other.
right
The test as
in
is stated
State v. Chris
tian, 253
“Clearly
Mo.
161 S. W.
then
the method
thus:
may
exclusion and
(statutory excep
inclusion we
deduce the rule
excepted)
only
may
joined
tion
that
such offenses
as arise out of
transaction,
same
cognate
and which
far
are so
as that an ac
’’
quittal, or
one,
conviction for
would be a bar
trial
to a
for the other.
v. Young, 266 Mo.
[State
305.]
v. Link,
transaction. The play regard, fast-and-loose this and it must hold guilt. to one or the other transaction to show Evi separate dence of always offenses cases of this nature has been held erroneous and harmful. Preslar, [State 142.]
Moreover, their evidence showed that what the witnesses observed June, 1923, occurred in judicially and we notice that the statutes the offenses did not into effect until June 1923. "We previous further notice that judicially intoxicating* liquor stat- transportation utes determined intoxicating the manufacture and liquor misdemeanors, applicable and that the Statute of Limitations year to misdemeanors is according to Section 3738, Revised Stat- *7 utes 1919.
IY. To render instant jury the case submissible tо the transportation count, it was on incumbent the State show that de- fendant, agents employees or his or behalf, in his in possession was operated ani^ boats the found on moored the Ken Transportation tucky shore, and that was trans- ported by means least of at one of of the boats over the waters the Mississippi contiguous County River to the New Madrid shore. Un- less in possession operating defendant was in of and boats used the thе transportation, jointly enterprise or unless he was interested in the participated or in transportation, the he committed no offense. passing, may pint pint
In of moonshine say we that half or the whiskey may grip found in on not to de- barge the the be fendant, possession grip for neither of nor his connection there- the boat, may with was shown. Others have of the been may knowledge on his grip someone have the without carried aboard part may whiskey. that it convicted of trans- contained One porting commodity a the facts circumstances show conscious unless custody. Harris, Cox, 106 211 Ore. Pac. [State Idaho, 387, Pac. Baugh, Ore. Pac. re 529.] facts boats. Tie establish that defendant was owner of the engaged gravel maintaining a business, was the sand and fleet of employed boats commodities from the river bed to pumping the barges. possession by defendant of the and motor bоats something previous less than month was shown. joint personal enterprise record no contains
participation transportation by in the defendant. The relevant in- may quiry then as whether defendant trans- arises convicted of proof ownership porting of his of the boats. We as- mere case, deciding, this without for it is unneces- purposes sume for ownership so, sary that of the boats sufficient to do defendant’s possession. However, in order to find presumption warrant the jury permitted presume, were to further from guilty, verdict SupRBme You 317. Missouri, presumption inferred ownership, that jug’s transported found on the shore were over shore; of the boats found River moored to second, and, enterprise that jointly in the he interested or that participated transportation. he presents hiatus, The evidence missing showing” chain links of circumstances. It not the province presumptiоn indulged to take as foundation a presumption presumptions law and build two other case. order to establish the State’s may an opportunity have
In order obviate the judgment and remand herein, found we reverse errors cause as the proceedings further be advised to such take. GO., concur. Kigbee Senwooá, Davis, C., opinion by adopted foregoing
PER CURIAM: The All judges concur. opinion of the court. 295 W. Appellant. Wilhite, William E. S. The State v. Two, June Division *8 Corporation: Ownership: Proof. Bank: Indictment: 1. ROBBERY: money property allege robbery larceny proper it is that it, although person property in lawful was the taken owner, a mere cus- that of such the actual unless he was not may charge robbing that the accused indictment a For bank todian. putting fear took from president and him in made an assault president, money bonds, goods property and if it so said him charge that chargеs the bank was is not defective it does not because corporation, the proof is no evidence that nor is the insufficient because there money proof showing corporation. Nor is bank support property insufficient to such were the bank bonds taken charge. Assignment: -: -: Demurrer Variance. If 2. motion for to Evidence: assign a new the action of court trial fails to overruling make out evidence, evidence to the dеmurrer to the lack of sufficient against defendant, appeal that a ease it cannot ruled on ground the indictment demurrer should have been sustained robbery proof charged money president of a was that bank property and bonds taken were the bank. INSTRUCTION: Circumstantial Evidence. An instruction on circum- necessary entirely unless made stantial evidence the case is out on prove circumstantial If there is direct the commis- evidence. charged, partially although sion made out defendant of crime the case evidence, required. such circumstantial an instruction is not