289 S.W. 954 | Mo. | 1926
The defendant was charged by information in the Circuit Court of Morgan County with feloniously having transported intoxicating liquor, commonly called hootch, moonshine or corn whiskey. Upon a trial to a jury he was convicted and sentenced to two years' imprisonment in the penitentiary. From this judgment he appeals.
The city marshal of Versailles stopped a car on the streets of that town, in which the defendant and another were riding, on account of the reckless manner in which they were driving; in so doing the marshal jumped upon the running board and turning off the switch stopped the car. While thus engaged he discovered that the defendant and his companion were drunk and he took them into custody. As he pulled the defendant out of the car a bottle of whiskey fell out of his pocket, and upon an examination of the car two other bottles were found beneath the seat where the defendant had been sitting. One of these contained intoxicating liquor, commonly called "hootch" or "moonshine." At the close of the plaintiff's testimony defendant filed a motion to suppress the evidence, which was overruled.
Defendant's testimony consisted of a statement of facts concerning his apprehension by the marshal. This did not differ materially from the testimony of the latter. Defendant did not deny that one of the bottles found under the seat of the car contained whiskey, nor that he was transporting the same. At the close of all of the testimony defendant filed a motion to quash the information on the ground that it did not allege from and to what place the liquor was being transported, which motion was overruled.
I. It is sufficient to charge the crime of illegally transporting intoxicating liquors in the language of the statute creating and defining the offense. If in so doing all the essential ingredients of the crime are stated, neither the purpose of the act, the intent with which it wasInformation. done or the initial or terminal points of the transportation need be stated. [State v. Cardwell,
II. Defendant contends that he was deprived of his liberty without due process of law in that he was arrested without process and that his automobile was examined without a search warrant. The *183
legality of his arrest is to be determined by the facts and circumstances attending the same and the law applicable thereto. The place of his arrest was in the city of VersaillesArrest: and the moving cause for same was his driving anSearch automobile while in an intoxicated condition. We willWithout take judicial notice, not only of the corporateWarrant. character of municipalities within the State (State v. White, 263 S.W. 192), but also that the population of Versailles, as shown by the last Federal census, authorizes its designation as a city of the fourth class (State v. McBrien,
Irrespective of the place where committed it is declared to be a misdemeanor for any one to operate a motor vehicle while in an intoxicated condition. [Sec. 7595, R.S. 1919.] Of this offense the defendant was guilty when arrested by the marshal. His apprehension under this state of facts was authorized and he has no valid cause of complaint on this account. In making this arrest it was disclosed that the defendant was in the act of transporting whiskey and the evidence of his guilt being, as the marshal determined, present and apparent from the bottles of liquor found beneath the seat of the defendant's car and the offense being a felony, his detention to answer the charge of the latter after his arrest for the misdemeanor was authorized. The felony, no less than the misdemeanor, was being committed in the presence of the marshal and hence within the terms of the statute, the potential effect of which is to include within the marshal's power arrests without process of parties guilty of any offense against the State or city. The well recognized rule that an officer may arrest without warrant for a felony if he has a well grounded and reasonable belief based upon existing facts and circumstances we discussed at some length in State v. Hall, 279 S.W. l.c. 104, and it need not be invoked here, as the evidence of the defendant's guilt was apparent to the officer, which not only clothed him with the power he exercised, but rendered his duty imperative. Section 25 of the Laws of Missouri of 1923, page 244, it may be admitted, is ample in its terms to confer the power of arrest upon the marshal under the facts at bar, but the naked statutory power there conferred must find the reasons for its support in the general statutes we have cited and discussed.
III. The marshal was not required to procure a search warrant to authorize him to search the defendant's car. The Supreme Court *184
of the United States, in an exhaustive opinion on Searches and Seizures as applied to automobiles (Carroll v. United States,
The facts in the instant case are of like effect to those set forth in the Carroll case and the rule there invoked is deemed appropriate here. The reason for the rule, as announced by Chief Justice TAFT, in that opinion, is that such delay would be occasioned in obtaining a warrant as to afford a vehicle of the character of an automobile time to be beyond the reach of officers or to have disposed of its cargo before the writ could be procured. This reasoning is in harmony with a purpose to effectively administer the law and punish offenders and should meet with our approval. We therefore overrule defendant's contention in this behalf.
IV. We have carefully examined this transcript. While incongruously assembled, so far as the proper insertion of record entries and matters of exception are concerned, itMisprision. is apparent that the judgment was not rendered until after the motion for a new trial had been filed, considered by the court and overruled. We hold therefore that the insertion of a date showing to the contrary was simply a misprision of the clerk and the defendant having been deprived of no right to which he was entitled should not be heard to complain.
V. The claim that the defendant was not accorded an allocution, will, under the plain provision of our remedial statute, Section 4058, Revised Statutes 1919, avail the defendant nothing, as he was heard on his motion for a new trial and in arrest of judgment and the requirement as to an allocution, under this state of the record, is to be deemed directory and insufficient to invalidate the judgment. No other conclusion can be reached,Allocution. except by ignoring the plain provisions of the statute referred to. The purpose of its enactment was, as we have frequently said, to obviate, where the record authorized, as it does at bar, the remanding of a *185 case, simply to inquire of the defendant if he had a reason why judgment should not be pronounced against him and to render a new judgment.
VI. While the word transportation has frequently been defined in cases of the character under review the failure of the court to define it in this case is not deemed to be error. It is a familiar word in our vernacular, has no technical signification, its use is general and the jury could not haveTransportation. failed to understand its meaning. As we, in effect, said in State v. Griffith, 279 S.W. l.c. 140, it is only where terms employed may not be readily comprehended by the jury that their definition is required. Furthermore, if the defendant had desired its definition he should have asked an instruction defining it.
In the absence of error this judgment is affirmed. All concur.