State v. Alexander
| Decision Date | 25 June 1926 |
| Docket Number | No. 26922.,26922. |
| Citation | 285 S.W. 984 |
| Parties | STATE v. ALEXANDER. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.
G. O. Alexander was convicted of selling moonshine, or corn whisky, and he appeals. Affirmed.
North T. Gentry, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.
The defendant was charged by information in the circuit court of Dunklin county with the felonious sale of "moonshine" or "corn whisky." Upon a trial to a jury in December, 1924, he was convicted, and his punishment assessed at three years' imprisonment in the penitentiary. From this judgment he appeals.
In November, 1924, three persons, one a prohibition officer, went to the residence of the defendant four miles west of Kennett. The defendant kept a country store near which the three persons found him. The prohibition agent asked the defendant if he had any Coca-Cola, and he replied that he had none. He accompanied them to a pump, where they got a drink of water, and one of them remarked to the defendant that it was rather weak. The defendant, as if in answer to the remark, said he did not know them, but as they were in the company of Tom Sparks, one of his neighbors, he guessed they were all right, and asked them how much they wanted. They gave him some money and the defendant left them and after a short time returned with some pint bottles of whisky, one of which he delivered to each two of the two parties named Palmer and Overall. Additional sales and a delivery of liquor by the defendant to these two parties were made soon thereafter. In each case the purchase price was $1.50 per pint. This prosecution is based upon the sales made to Overall. The whisky was taken to Kennett, tested, and found to contain 55 per cent. of alcohol.
The defendant denied that he sold any liquor to Overall or either of the parties accompanying him; that they did not ask for Coca-Cola and that he made no remark expressive of his confidence in them on account of the presence of his neighbor Sparks; that they asked for whisky and upon his declaration that he had none they drove away. His testimony was supported by that of three neighbors, who stated that they were present and that no sale was made by him. Palmer and Overall testified that neither of these neighbors was present when they bought the liquor from the defendant and when it was delivered.
The court instructed the jury to disregard the testimony of Palmer as to the purchase by him and to confine their consideration to the sale made to Overall.
In the absence of a brief for the defendant the review of this case must be based upon the contentions made in the motion for a new trial.
I. It is contended that error was committed in the cross-examination of the defendant. The alleged error consisted in inquiries made of him not brought out in his examination in chief. The record discloses no cross-examination of the defendant which under any construction can be said to violate the limitations of the statute (section 4036, R. S. 1919). The inquiries were confined to matters concerning which he had testified in chief, except an inquiry as to whether he had theretofore been convicted of crime, to which he answered: "Yes; twice." This inquiry was permissible to affect the credibility of his testimony. Section 5439, R. S. 1919; State v. White, 299 Mo. 611, 253 S. W. 724; State v. Stokes, 288 Mo. 539, 232 S. W. 106; State v. Howe, 287 Mo. 111, 228 S. W. 477, and cases.
II. Testimony was admitted over defendant's objection of a sale of liquor by him to Palmer at the same place he made the sale to Overall and a few minutes prior to the latter; Overall and Palmer being present at each sale. This is alleged to have been error. The testimony was admissible as a part of the res gestæ. While not an immediate part of the offense with which the defendant was charged, it was of the same character, practically at the same time, was explanatory of the latter, and tended to show a motive for the sale to Overall. The rule as thus announced has been applied in the admission of this character of testimony against a defendant in the highest crime known to the law. State v. Jones (Mo. Sup.) 256 S. W. 787. The ground of admissibility of evidence of extraneous crimes is well stated by Perriss, J., in State v. Hyde, 234 Mo. loc. cit. 225, 136 S. W. 316, Ann. Cas. 1912D, 191, in effect as follows:
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...held that fixing punishment for a crime defined by statute is the province of the legislature, not the courts. State v. Alexander, 315 Mo. 199, 285 S.W. 984, 985 (1926); State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777, 779 (1928); State v. Motley, 546 S.W.2d 435, 437 (Mo.App.1976); see cases c......
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...obviously sound, disposes of the question thus raised, and so the point is ruled against appellant." And State v. Alexander, 315 Mo. 199, 202(4), 285 S.W. 984, 985(4), states: "It is held no matter how severe the punishment may appear to be in a particular case it is not to be considered ex......
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