Kinney v. State
| Decision Date | 28 May 1926 |
| Docket Number | 26987 |
| Citation | 285 S.W. 87 |
| Parties | KINNEY v. STATE |
| Court | Missouri Supreme Court |
North T. Gentry, Atty. Gen., and A. B. Lovan, Sp. Asst. Atty. Gen for the State.
On August 22, 1924, the prosecuting attorney of Stoddard county Mo., filed in the circuit court of said county a verified information, containing seven counts, the first of which without caption, signature, and jurat, reads as follows:
A change of venue was awarded defendant, and the case sent to the circuit court of Dunklin county, Mo., where it was tried.
On January 20, 1925, the case was tried before a jury, and the latter, being unable to agree upon a verdict, were discharged. Thereafter, on January 22, 1925, defendant waived arraignment and entered a plea of not guilty. Both parties announced ready for trial before another jury, and on January 22, 1925, the following verdict returned:
Thereafter motions for a new trial and in arrest of judgment were filed and overruled. Allocution was granted defendant, judgment rendered on said date, and defendant sentenced in conformity with the verdict aforesaid. An appeal was allowed defendant to this court, and an appeal bond filed and approved in the sum of $ 2,000. The defendant was not sworn as a witness, no proof was offered in his behalf, and he has filed no brief in this court.
The evidence on behalf of the state discloses that the sheriff of Stoddard county, on March 7, 1924, went out into the swamps of said county with two of his deputies 12 or 14 miles from Bloomfield, slipped upon defendant, and found him manufacturing whisky in said county. They found him in possession of a still and all the necessary implements for making moonshine whisky, with the same in actual operation, and producing whisky commonly called 'hootch,' 'moonshine,' and 'white mule whisky.' The sheriff preserved a quart of the whisky made by defendant in said county, and exhibited the same to the jury at the trial. Such other matters, if any, as may be deemed important will be considered in the opinion.
Opinion.I. Appellant is here without any brief, and, although his motion for a new trial contains a number of assignments of error, but few of them are before the court for our consideration.
It appears from the record that a former trial of this cause occurred in the circuit court in Dunklin county; that on January 20, 1925, the jury were unable to agree upon a verdict and were discharged. In the former trial the application for a change of venue, a plea to the jurisdiction of the court, a plea in abatement, a motion to quash the search warrant, and a motion to suppress evidence were before the court. None of the foregoing documents were refiled offered in evidence, or made a part of the bill of exceptions filed in the last trial, and hence are not properly before the court for review. State v. Dailey (Mo. Sup.) 280 S.W. loc. cit. 1046; State v. Forshee, 308 Mo. 651, 274 S.W. loc. cit. 422, and cases cited; State v. Sadowski (Mo. Sup.) 256 S.W. 753; State v. Brown, 304 Mo. 78, 262 S.W. 710, 711; State v. Sanders, 299 Mo. loc. cit. 197, 252 S.W. loc. cit. 634; State v. Barker, 294 Mo. 303, 242 S.W. loc. cit. 410; State v. Langford, 293 Mo. 436, 240 S.W. loc. cit. 168; Kline Cloak & Coat Co. v. Morris, 293 Mo. 478, 240 S.W. loc. cit. 100; State ex rel. Dolman v. Dickey, 288 Mo....
To continue reading
Request your trial