State v. Sappington
| Decision Date | 18 February 1928 |
| Docket Number | No. 28235.,28235. |
| Citation | 2 S.W.2d 729 |
| Court | Missouri Supreme Court |
| Parties | THE STATE v. W.B. SAPPINGTON, Appellant. |
Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.
AFFIRMED.
D.W. Peters for appellant.
(1) The defendant was misled and permitted evidence of the search and seizure of the liquor upon his premises sometime after the alleged sale was made, and his subsequent conviction therefor to be introduced by the State, expecting to be permitted to show that his plea was entered in the possession case, upon the promise of the prosecuting attorney to dismiss this charge. This was evidence of a separate and distinct offense, which should not have been gone into, and after it was gone into, the court should have permitted defendant to offer his explanation concerning the matter. (2) The court should have discharged the jury upon request of the defendant on account of the highly inflammatory remarks made by the prosecuting attorney, to which defendant objected and excepted at the time, in his closing arguments, as set out in the bill of exceptions. (3) The testimony of the prosecuting witness was that he went after gin, asked for gin, and secured gin. It is a well-known fact that gin is made directly from ethyl alcohol by the addition of distilled water and extract of juniper berries. The chemist introduced by the State, who analyzed the liquid secured by the prosecuting witness, stated that it tested 57 per cent ethyl alcohol. He further testified that the ordinary hootch, moonshine, corn whiskey contained an average of 30 per cent alcoholic content, not ethyl alcohol. The fact that the prosecuting witness, the sheriff and the chemist stated upon further questioning by the prosecuting attorney, that they referred to the liquid introduced in evidence as hootch, moonshine, corn whiskey, had no probative effect and was invading the province of the jury in expressing their opinion as to what the liquid was. This court may not properly say that the intent of the Legislature in Section 21 was to cover, along with the manufacturers and sellers of hootch, moonshine, corn whiskey, those who also might dilute, and sell ethyl alcohol. For this reason the proof offered by the State was wholly at variance with the charge contained in the information, and the court should have sustained defendant's demurrer to the testimony.
North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.
(1) The court committed no error in admitting in evidence testimony for the State showing that about thirty minutes after the defendant was alleged to have sold one pint of corn whiskey to the prosecuting witness, his hotel was raided and about fifteen gallons of whiskey were found. This evidence was admissible to show purpose, design, a system of mutually dependent crimes and a common scheme or plan to violate the law. State v. White, 289 S.W. 954; State v. Sherman, 264 Mo. 374: State v. Carroll and Jacoy, 288 Mo. 392; State v. Flory, 290 S.W. 1026; State v. Fenley, 275 S.W. 40. (2) The evidence produced on the part of the State was sufficient upon which to base the verdict of the jury. State v. Brown, 285 Mo. 995; State v. Wright, 280 S.W. 703; State v. Brock, 280 S.W. 48; State v. Sisson, 278 S.W. 704; State v. Blocker, 278 S.W. 1014; State v. White, 289 S.W. 953; State v. Black, 289 S.W. 804. (3) Since appellant failed to except to the sufficiency of the court's rebuke to the prosecuting attorney when objection to his argument was sustained, he cannot now be heard to complain. State v. Kelley, 284 S.W. 803; State v. McMullin, 170 Mo. 608; State v. Gartrell, 171 Mo. 489; State v. Rasco, 239 Mo. 579. Furthermore this court will not reverse a case because of improper remarks made by a prosecuting attorney unless it appears that the remarks influenced the jury and had something to do with their bringing in of a verdict of guilty. State v. Harvey, 214 Mo. 403; State v. Hibler, 149 Mo. 478; State v. Tracy, 294 Mo. 372. (4) The verdict is not the result of passion and prejudice. State v. Helpley, 279 S.W. 701; State v. Renfro, 279 S.W. 703; State v. Ellis, 290 Mo. 228; State v. Alexander, 285 S.W. 984. (5) Appellant complains, in paragraph number four of his motion for new trial, that the court committed error by refusing to let him show that he was induced to plead guilty on a charge of possession of liquor by reason of the fact that the prosecuting attorney promised that if he entered a plea of guilty to said possession charge he would not prosecute on the present charge. Appellant's position is not well taken and there is no merit in this assignment. Whether or not the appellant was induced to plead guilty to possessing liquor tends to prove no issue in the instant case. Even if he were induced to plead guilty in another case that would be no defense to the prosecution herein. If a promise was made him in the possession case by an officer in charge and he was misled, he should take an appeal from his plea of guilty. The trial for the other crime had nothing to do with the one in question; the two are separate and distinct.
By an information filed in the Circuit Court of Cooper County, appellant was charged with the unlawful sale of one pint of hootch, moonshine and corn whiskey to one Oscar Williams. The venue was changed to the Circuit Court of Pettis County, where he was tried and convicted and his punishment assessed at a fine of $500 and imprisonment in the county jail for three months. He was sentenced in accordance with the verdict and appealed.
The evidence produced by the State shows that on March 13, 1925, appellant was conducting the Commercial Hotel or Sappington Hotel in the city of Boonville, in Cooper County. About two o'clock in the afternoon of that day, Oscar Williams, a young man, twenty-six years of age, residing in Boonville, went to the hotel and bought a pint of liquor from appellant, for which he paid the sum of $3. He found appellant in the yard back of the hotel and appellant took him into the hallway of the hotel, where the bottle of liquor was handed to him and the money paid in exchange for the same. Williams said that a strange man in Boonville with the "Honey-Bunch Show" gave him the $3 and asked him to go to Mr. Sappington and get a pint of gin. He said he got "gin," but he also said that the liquor he got sometimes goes by the name of "whiskey." Williams was stopped by a deputy sheriff a few steps from the front door of the hotel and taken to the office of the prosecuting attorney, where the sheriff took charge of the bottle of liquor. He told the officers he got the liquor from appellant, and "within thirty minutes" the officers searched the hotel and found there, under a stairway, 14½ gallons of "hootch, moonshine, corn whiskey."
The sheriff said that he had "arrested some two hundred moonshiners and bootleggers and examined their wares" and in that way had become familiar with "hootch, moonshine and corn whiskey." He further said that the liquor in the bottle "appeared to be exactly the same" as the fourteen and one-half gallons of "hootch, moonshine, corn whiskey" found under the stairway at the hotel and that it had the same odor.
Captain G.T. Irvine, an instructor in chemistry for twenty years at Kemper Military School, testified that he analyzed the liquor in question and that it contained "57% by volume of ethyl alcohol." When asked if ethyl alcohol goes by any other name, he said: "It is sometimes called whiskey and sometimes called hootch, sometimes called moonshine, sometimes called corn whiskey, sometimes called white mule." On cross-examination, he said that whiskey made according to Government regulations contained, on an average, "somewhere around thirty percent" of alcohol; also, that whiskey "classed as 100 proof" contained fifty per cent of alcohol.
Appellant took the stand in his own behalf and denied that he sold the bottle of liquor to Oscar Williams. He also said, on direct examination, that he pleaded guilty to a charge based on the unlawful possession of the 14½ gallons of liquor found on his premises and paid a fine of $300, and served thirty days in jail as punishment therefor. His counsel offered to prove by him that he was induced to plead guilty to the charge above mentioned by reason of "an understanding with the proper authorities" that this charge would be dismissed. On the objection of the State, this evidence was excluded.
Appellant's wife and another witness testified that, on the afternoon in...
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