State v. Presslar

• Citation: 290 S.W. 142,316 Mo. 144
• Decision Date: 20 December 1926
• Docket Number: 27333
• Parties: The State v. F. E. Presslar, Appellant
• Court: United States State Supreme Court of Missouri

290 S.W. 142

316 Mo. 144

The State v. F. E. Presslar, Appellant

No. 27333

Supreme Court of Missouri

December 20, 1926

Appeal from Stoddard Circuit Court; Hon. W. S. C. Walker Judge.

Reversed and remanded.

Hall & Bradley and L. R. Jones for appellant.

(1) It was error to require the defendant to go to the jury on four felony counts in one information. (2) The learned trial court erred in permitting the State to offer evidence of other and different offenses. State v. Cox, 263 S.W. 215; State v. Finley, 275 S.W. 44; State v White, 223 S.W. 683; State v. Stike, 139 Mo.App. 107.

North T. Gentry, Attorney-General, and H. O Harrawood, Special Assistant Attorney-General, for respondent.

(1) Defendant complains that the court did not require the prosecuting attorney to elect upon which count he would stand. This would seem to be reversible error if the objection were properly raised, but defendant's counsel, after raising this point, not only failed to save an exception, but agreed to the action of the prosecuting attorney and the ruling of the court, thus waiving any right defendant might have had to object. State v. Cantlin, 118 Mo. 100; State v. Allbright, 144 Mo. 642; State v. Vinso, 171 Mo. 591. (2) The testimony about which complaint is made was offered for the purpose of contradicting a witness. The testimony of sales, however, was not permitted to go to the jury, as that part of the testimony was stricken out by the court. (3) The other testimony about which defendant complains was offered in rebuttal for the purpose of contradicting the statement of the defendant that he "never sold no whiskey to anybody at any time." The time was restricted to a period of one year next preceding the dates mentioned in the information, and such testimony was admissible under the charges.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On February 21, 1925, the Prosecuting Attorney of Dunklin County, filed in the circuit court of said county, a verified information, in four counts, which, omitting formal parts, reads as follows:

"Count One.

"James V. Billings, Prosecuting Attorney within and for the County of Dunklin, in the State of Missouri, upon his oath of office as such prosecuting attorney, and upon his hereto appended oath, and upon his knowledge, information and belief, informs the court and charges that at the County of Dunklin, in the State of Missouri, on or about the 14th day of December, 1924, the defendant, F. E. Presslar, did unlawfully and feloniously sell 'moonshine,' 'corn whiskey,' to-wit: One-half pint, more or less, against the peace and dignity of the State.

"Count Two.

"And this affiant aforesaid upon his said oaths as aforesaid and upon his knowledge, information and belief, informs the court and charges that at the County of Dunklin, in the State of Missouri, on or about the 14th day of December, 1924, the defendant, F. E. Presslar did unlawfully and feloniously sell 'moonshine' 'corn whiskey,' to-wit: One-half pint, more or less, against the peace and dignity of the State.

"Count Three.

"And this affiant aforesaid upon his said oath as aforesaid, and upon his knowledge, information and belief, informs the court and charges that at the County of Dunklin, in the State of Missouri, on or about the 28th day of Nov., 1924, the defendant F. E. Presslar did unlawfully and feloniously sell 'moonshine' 'corn whiskey,' to-wit: One-half pint, more or less, against the peace and dignity of the State.

"Count Four.

"And this affiant aforesaid upon his said oaths as aforesaid, and upon his knowledge, information and belief, informs the court and charges that at the County of Dunklin, in the State of Missouri, on or about the 28th day of Nov., 1924, the defendant, F. E. Presslar, did unlawfully and feloniously sell 'moonshine' 'corn whiskey,' to-wit: One-half pint, more or less, against the peace and dignity of the State."

Defendant waived formal arraignment, and entered a plea of not guilty. He was tried before a jury in Stoddard County, on a change of venue and, on April 13, 1925, the following verdict was returned.

"We, the jury, find the defendant guilty as charged in Count No. One of the information, and assess his punishment at two years' imprisonment in the penitentiary.

"W. J. Vaughn, Foreman.

"We, the jury, find the defendant guilty as charged in Count No. Two of the information, and assess his punishment at two years' imprisonment in the penitentiary.

"W. J. Vaughn, Foreman.

"We, the jury, find the defendant guilty as charged in Count No. Three of the information, and assess his punishment at two years' imprisonment in the penitentiary.

"W. J. Vaughn, Foreman.

"We, the jury, find the defendant guilty as charged in Count No. Four of the information, and assess his punishment at two years' imprisonment in the penitentiary.

"W. J. Vaughn, Foreman."

On April 15, 1925, defendant filed motions for a new trial and in arrest of judgment. Both motions were overruled on said date. Thereafter, on the same day, allocution was granted, judgment rendered, sentence pronounced in conformity with said verdict, and an appeal allowed to this court.

The evidence of the State tends to show that R. L. Bradley and Luther Benfield stopped at the house of defendant in Dunklin County, about nine o'clock in the morning of November 28, 1924, bought from defendant two bottles of whiskey, and paid him one dollar for each bottle of same; that on December 14, 1924, R. L. Bradley and his brother, J. F. Bradley, each bought a half pint of whiskey from defendant at Jim Martin's store at Frisbee, in Dunklin County. Missouri, and paid him therefor. The first and second counts of the information are based on the above sales of December 14, 1924. The third and fourth counts of the information are based on the sale made November 28, 1924. The State contended, and went to the jury on the four counts of information on the theory, that the sale on November 28, 1924, constituted two separate and distinct felonies and that the sale on December 14, 1924, also constituted two separate and distinct sales. The defendant denied on the witness stand that he sold whiskey to either of the parties aforesaid on November 28, 1924, or on December 14, 1924, or at any other time. He also offered evidence tending to show that he was at some other places when the sales occurred.

The evidence tends to show that the Bradley brothers were employed to make the above purchases in order to convict defendant of selling whiskey. The evidence likewise tends to show that the whiskey, or at least a part of same, was preserved and produced at the trial.

Other testimony was offered by the State and defendant which we have not thought it necessary to set out here.

The instructions, rulings of the court, and such other matters as may be deemed important, will be considered in the opinion.

I. We are met at the threshold of this case with the proposition, as to whether a judgment of conviction for four separate and distinct felonies, set out in four separate and distinct counts of the information, can be sustained on the record before us. The eighth paragraph of the motion for a new trial asked that defendant be granted a new trial: "Because the court erred in not requiring the prosecuting attorney to elect on which count of the information he would rely for conviction . . ."

Counsel for the State have this to say of the above assignment: "Defendant complains in assignment number eight that the court did not require the prosecuting attorney to elect upon which count he would stand. This would seem to be reversible error if the objection were properly raised, but defendant's counsel, after raising this point, not only failed to save an exception, but agreed to the action of the prosecuting attorney and the ruling of the court, thus waiving any right defendant might have had to object."

Here is what occurred as shown by the record. Before Mr. Billings, the prosecuting attorney, made his opening statement to the jury, Mr. Bradley, of counsel for defendant, said to the court: "At this time we would like to move that the prosecuting attorney be required to elect on which one of the counts of December 4th (14th) he intends to rely, as there is no affidavit but for one."

It is evident that Mr. Bradley was not aware of the fact that the State could be required to elect on each count of the information, as he stated here in the argument of the case, but he thought there was only one affidavit as to the sale of December 14th, made by the prosecuting attorney, and was referring to this matter in what he said. The remaining conversation reads as follows:

"Mr. Billings: There is two affidavits for the 14th, two for the 28th, and two for the 25th.

"Mr. Bradley: Well that's all right.

"The Court: The law governing this kind of case says you may combine several cases, and you don't have to elect."

It is evident that the court had in mind the question we are considering, but Mr. Bradley had in mind an entirely different subject as shown by the following:

"Mr. Bradley: Yes, sir, it's all right; I was mistaken in my contention."

It would be doing violence to the language used, if we should hold that Mr. Bradley, in what he said, intended to confer jurisdiction on the court by way of waiver, and consent that four separate felonies might be submitted to the jury and separate verdicts returned on each count. It is manifest that the court did not rely on what Mr. Bradley said in stating the law by which it was to be governed in respect to an election. In...