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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 723 The defendant Howard is jointly indicted with W.A. Russell for the transportation of intoxicating liquor for beverage purposes.
Russell pleaded guilty and was duly sentenced. Howard, after plea of not guilty, was tried and convicted.
On appeal, the defendant complains of the refusal of the trial judge to be governed by two special charges, which it is contended are applicable to the facts of the case.
The court was asked to charge itself:
"(1) That if Howard had no knowledge of the whisky being in the back end of the coupé, as the facts seemedto indicate, it is the court's duty to find the defendant not guilty.
"(2) In order for the defendant to be found guilty there must be some evidence going to show that the defendant had actual knowledge *Page 724 of the presence of the liquor in this third person'scar which he was driving."
The bill reserved contains the testimony of the sheriff of Lincoln parish, of the defendant Howard, and of his codefendant, Russell.
In his testimony, Russell exonerates Howard of all guilt in connection with the transportation of the liquor, consisting of from 60 to 75 quarts of whisky.
Russell states that he brought the liquor from New Orleans in his car, and was transporting it to El Dorado, Ark.; that he met Howard, for the first time, while crossing the Mississippi river in a ferry boat at Natchez; that Howard was on his way to Smackover, Ark., and, at his request, was allowed to ride in the car. Russell declares that Howard knew nothing of the presence of the liquor in the car, which was overturned in an accident near Ruston, while Howard was driving it; both of the occupants of the car being injured.
Howard testifies that he had never known Russell prior to their meeting on the ferry boat; that he was on his way to Smackover, in search of work, and, at Howard's request, Russell agreed to give him a ride.
Howard denied any knowledge of, or connection with, the liquor in the car. Russell accounts for Howard's driving the car by the statement that he, Russell, was worn out by an all night drive from New Orleans, and requested Howard to relieve him.
The sheriff testifies that he was called to investigate an automobile accident near Ruston; that he went to the scene and there found 60 to 75 quarts of whisky in the back end of a Chevrolet coupé; that, upon being informed that the occupants of the car had been injured in the accident, and had gone to a doctor's office in Ruston, he went to the office of the doctor and arrested the defendants; that the arrest was made about an hour after the accident, and that he, the sheriff, neither saw nor observed anything *Page 725 to indicate that either of the men arrested had been drinking; that Russell had told him in the presence of Howard that Howard was driving the car at the time of the accident; and that Howard made no denial of Russell's statement. The state offered no other evidence.
However, the trial judge, in our opinion, emasculated the bill by the following statement in his per curiam:
"Taking into consideration all of the facts and circumstances testified to by the two accused parties, in connection with the testimony of the sheriff of Lincoln parish, the court believes and is convinced that defendant Howard did know that there was whisky in the car he was driving when the car was wrecked; and the court believes that both of the accused parties testified falsely when they testified that Howard knew nothing about there being whisky in the car. The court believes that both of the accused parties are rum runners, and were engaged in that undertaking when their car was wrecked in Lincoln parish, and was found to contain a large quantity of intoxicating liquor. Defendant Howard had driven the car from Rayville to Choudrant, a distance of 50 or more miles, and had ridden in the car with Russell from Natchez, Miss. But even if Howard did not have actual knowledge that the car contained a cargo of liquor, as claimed by him, the burden of proof of that fact rests upon him. The testimony did not convince the court that he did not know it. On the contrary, the evidence all taken together convinces the court that he did know it. In its refusal to give the second special charge requested, the court is guided by what it deems to be the jurisprudence of the Supreme Court of the state in such cases. He is presumed to know what he was doing and to have intended to do what he was doing, viz. transporting intoxicating liquors. See State v. Dowdell, 106 La. 650, 31 So. 151; State v. Cain,106 La. 713, 31 So. 300; State v. Quinn, 131 La. 494, 495,59 So. 913.
"The court repeats that the taking the evidence all together and weighing it fairly and impartially, it is sufficient to justify the conviction of defendant Ed Howard. Furthermore, the offense charged is a misdemeanor, and the act of one of the parties participating in it is the act of all."
On the trial of misdemeanors, a district judge discharges dual functions, and is *Page 726 not only the exclusive judge of the law, but also the exclusive judge of the facts, the weight and sufficiency of the evidence, and the credibility of the witnesses. State v. Whittaker,152 La. 639, 94 So. 144.
The trial judge has declared in his per curiam that, in his opinion, the defendant Howard and his codefendant, Russell, swore falsely in stating that Howard was ignorant of the fact that there was a cargo of whisky in the car. He has passed upon the credibility of these witnesses and discredits their testimony as to Howard's want of knowledge as to the presence of liquor in the automobile which he was driving.
This court is without any authority, under its criminal appellate jurisdiction as to questions of law, to declare that it differs from the district judge, and believes that these witnesses swore truthfully, and, therefore, that it will review their testimony as undisputed facts in the case. Const. 1921, art. 7, § 10, and article 19, § 9.
In other words, there is a clear disagreement between the judge a quo and counsel for the defendant as to the facts of the case. The contention of the judge is that the evidence, as appreciated by him, shows that both defendants were confederates in a rum-running undertaking, a finding of facts which necessarily includes the further finding as to the guilty knowledge or criminal intent of Howard; while counsel for defense, on the other hand, insist upon our considering the testimony of defendant and his witness, and taking the opposite view of the facts.
There can be no question in the case as to the defendant Russell being a rum-runner, as he has confessed it. It was not necessary that Howard should have left the city of New Orleans with Russell in the same car, in order to make him a confederate. He could easily have joined Russell at Natchez, Miss. It was the point reached by Russell after an all night drive, and at a time that *Page 727 he needed relief, as he was worn out by the long trip.
That the two men in the rum car had joined each other at a necessary and convenient point on the road is a reasonable, rather than an unreasonable, conclusion which may be drawn in the case. Howard was not picked up by Russell as a pedestrian on the highway and given a ride for a short distance. He was to accompany Russell from Natchez, the meeting point, to El Dorado, the destination of the rum car.
Howard was in the car with Russell all the way from Natchez, Miss., and had driven the car 50 miles or more, from Rayville to Choudrant, when the accident occurred. It is not disputed that the car contained a large quantity of liquor, which was to be sold at El Dorado.
It cannot be contended, therefore, that the refusal of the trial judge to accept the testimony of Howard and Russell in this case as true was merely arbitrary action upon his part, and wholly unjustified by the facts and circumstances of the case. He had a right to consider the interest of Howard and his codefendant in testifying in the case, and his conclusion is that their testimony is a "frame-up." There is some evidence to connect Howard with Russell in the transportation of the liquor. Whether such evidence will satisfy all judicial minds of guilt beyond a reasonable doubt presents merely a question as to its sufficiency.
It is well settled that the Supreme Court will not review the sufficiency of the evidence, if there was any evidence at all of a fact essential to conviction. State v. Tyler, 150 La. 131,90 So. 538.
There is a vast difference between evidence and proof. The one convinces, while the other may be false, and of no probative value whatever.
The intent to sell intoxicating liquor may be deduced either from direct or circumstantial *Page 728 evidence. State v. Prophet, 157 La. 550, 102 So. 666; State v. Davis, 160 La. 548, 107 So. 402.
Guilty knowledge, or wrongful intent, as to the transportation of intoxicating liquor for beverage purposes, may be established from all the facts and circumstances of the case, although such knowledge is denied by a defendant, and although there is no direct testimony as to his knowledge in the case. Desty Am. Cr. Law, § 6a.
The judge a quo refused the first special charge. He found, however, as a fact on the trial, that Howard did know of the presence of the whisky in the car. While the requested charge should have been granted, we find no reversible error in its refusal, as the principle of law which defendant sought to have applied to the case was applied in fact on the trial.
We do not concur in the alternative reason for refusing the first special charge that —
"Even if Howard did not have actual knowledge that the car contained a cargo of liquor, as claimed by him, the burden of proof of that fact rests upon him."
However, immediately following, and in connection with, this statement, we find the following:
"The testimony did not convince the court that he did not know; on the contrary, the evidence all taken together convinces the court that he did know it."
The verdict, therefore, was not founded upon the failure of defendant to discharge his supposed burden as to proof of no knowledge on his part as to the presence of liquor in the car, but upon affirmative evidence as to defendant's guilty knowledge, or wrongful intent, as shown by "the evidence all taken together."
The second special charge, that "there must be some evidence going to show that the defendant had actual knowledge of the presence of the liquor in this third person's car *Page 729 which he was driving," was refused on three grounds:
(1) That "he [defendant] is presumed to know what he was doing and to have intended to do what he was doing, viz. transporting intoxicating liquors. See State v. Dowdell, 106 La. 650, 31 So. 151; State v. Cain,106 La. 713, 31 So. 300; State v. Quinn, 131 La. 495,59 So. 913."
(2) "The court repeats that, taking the evidence all together and weighing it fairly and impartially, it is sufficient to justify the conviction of the defendant Ed Howard."
(3) "Furthermore, the offense charged is a misdemeanor, and the act of one of parties participating in it is the act of all."
The Dowdell, Cain, and Quinn Cases, above cited, have no application to the case at bar.
In the Dowdell Case, the defendant was charged with "shooting at the dwelling house of Turner Lawson, where he, the said Turner Lawson, and his family, were at the time residing."
The court merely held in that case that shooting at a dwelling house in which persons were residing was deemed so perilous or injurious as to justify the Legislature in making the doing of that act per se a crime without a reference to intent, motive, purpose, or knowledge.
The facts in the Dowdell Case show that the defendant intentionally shot at Lawson while standing on the gallery of his own dwelling; his family being at home. The court held that —
"The shooting `at the house' and the `shooting at Lawson' were concurrent, simultaneous, illegal acts. Each separately was subject to indictment. It cannot be claimed that legal responsibility for `shooting at the house' was lost because in `so shooting' the intent was to shoot at a person in the house. The district attorney elected to make the shooting at the house (the lesser crime) the object of the prosecution."106 La. at page 650, 31 So. 153.
As the defendant in shooting at Lawson on the gallery of his house committed an unlawful act, separate and apart from the shooting at the house, for which he was indicted, *Page 730 the court cites appropriately in the opinion Wharton's Criminal Law, § 87:
"Parties may be criminally responsible for unforeseen consequences, although against their wish, if they ensue from an act which is itself unlawful, and in its original nature wrongful or mischievous."
While no specific intent is required in "shooting at a dwelling house," yet it is legally impossible that any crime at all can exist, without combination of criminal act and criminal intent, or the intentional doing of a wrongful act. Desty's Am. Cr. Law, §§ 5a, 8a.
The Cain Case is a bigamy case. It is held in that case that, if a statute has made it criminal to do any act under particular circumstances, the party voluntarily doing the act is chargeable with the criminal intent of doing it. The Hood Act does not make the transportation of intoxicating liquor under particular circumstances a crime. The prohibition is general in its character. Act No. 39 of 1921 (Ex. Sess.) § 1.
The Quinn Case is a bribery case. It is stated in the opinion in that case that —
"Where an offense is denounced as unlawful by statute, the doing of the act constitutes the offense, and it is unnecessary to allege and prove guilty intent."
That decision clearly means that it is not necessary to allege or prove any specific intent, in cases in which the statute does not require it, since, without legal malice, or a wrongful act done intentionally, there can be no crime at all.
"In other words, where an act is prohibited on pain of punishment, criminal intent is nothing more than intention to do the act, provided the wrongdoer is a person capable of entertaining criminal intent, and acts without justification or excuse." Clark's Criminal Law (2d Ed.) pp. 14 and 50.
Intent is generally inferred from the commission of the act, as it is manifested by the facts and circumstances connected with the perpetration of the offense. As the *Page 731 essence of every offense is the wrongful intent with which it is done, and without which it cannot exist, the intent must be established, either by direct or circumstantial evidence, beyond a reasonable doubt. Desty's Am. Cr. Law, §§ 5a, 6a.
The trial judge, however, did not convict defendant on any presumption of guilt arising from his interpretation of the decisions in the Dowdell, Cain, and Quinn Cases; but, as stated by him in reason No. 2 for refusing the second special charge, he found defendant guilty, after weighing fairly and impartially all of the evidence in the case, which he considered sufficient to convict.
The motion for new trial, in so far as it is based on the ground that the verdict is contrary to the law and the evidence, presents nothing for review by this court.
The other grounds of the motion, that the trial judge erred in refusing to grant the two special charges requested by defendant, have been already considered and disposed of in this opinion.
As, in our opinion, the evidence tends to show the connection of the accused with the transportation of the liquor, we must decline to pass upon its sufficiency.
Judgment affirmed.
O'NIELL, C.J., and BRUNOT and THOMPSON, JJ., dissent, and O'NIELL, C.J., hands down reasons.