State v. Black

• Citation: 289 S.W. 804
• Decision Date: 20 December 1926
• Docket Number: 27464
• Parties: STATE v. BLACK
• Court: United States State Supreme Court of Missouri

289 S.W. 804

STATE v. BLACK

No. 27464

Supreme Court of Missouri, Second Division

December 20, 1926

Cope & Tedrick, of Poplar Bluff, for appellant.

North T. Gentry, Atty. Gen., and H. O. Harrawood, Sp. Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

The appellant was convicted in the circuit court of Wayne county on an information filed in said court on January 3, 1925 charging that he did at said county, on or about October 13 1924, unlawfully and feloniously sell to one Denver Ball a half pint of hootch, moonshine, and corn whisky, for the price and sum of $ 1. On a trial he was found 'guilty as charged of selling to Denver Ball,' and his punishment assessed at imprisonment for two years in the penitentiary. A motion for new trial was overruled on September 3, 1925, and sentence was pronounced in accordance with the verdict; the sentence to date from February 1, 1925, 'the defendant having been in jail from that date to this date.' A motion in arrest of judgment was then filed and overruled, and defendant appealed.

We adopt, with a few changes, the Attorney General's summary of the evidence, as follows: The state's evidence tends to show that on or about October 6, 1924, Denver Ball and Sterling Darnell, residents of Flat River, Mo., came to Piedmont in Wayne county, and were immediately employed by the mayor of the latter place to act in the capacity of deputy city marshals for the purpose of obtaining evidence against citizens of Piedmont who might be violating the liquor law. Ball and Darnell were employed on a contingent fee basis of $ 50 for each arrest followed by conviction in the police court of Piedmont; nothing if no conviction were had.

Witnesses Ball and Darnell testified that within a few days after coming to Piedmont they became acquainted with the defendant, Elmer Black, and that on the 13th day of October, 1924, they went to the home of the defendant in Piedmont, where Ball, in the presence of Darnell and Mrs. Black, wife of the defendant, purchased from defendant one-half pint of whisky, for which he paid the defendant $ 1. Both Ball and Darnell testified that they smelled and tasted the whisky, and to the best of their knowledge it was corn whisky, and that it was labeled and turned over to the city marshal; that each had had experience in drinking and handling corn whisky, although neither claimed to be an expert so as to be able to distinguish corn from rye whisky. On cross-examination Sterling Darnell testified that he bought a half pint of corn whisky from the defendant, but that was on a different occasion.

The defendant denied selling either of the prosecuting witnesses any whisky. Defendant's wife testified that she knew Ball and Darnell, and that she thought they were at her home during October, 1924, one time, but did not know whether they were there on the 13th of October or not. She testified further that she did not see her husband sell them any liquor.

Instruction 1, given for the state, reads:

'The court instructs the jury that, if you believe and find from the evidence in the case, and beyond a reasonable doubt as hereinafter instructed, that at the county of Wayne, state of Missouri, at any time within three years next before the 3d day of January, 1925, the date of filing the information herein, the defendant, Elmer Black, did sell to one Denver Ball a quantity of 'hootch, moonshine, and corn whiskey,' to wit, one-half pint, or any quantity, for the price of $ 1 or any sum of money, you should find the defendant guilty as charged, and, unless you do find such facts to be true, you should find the defendant guilty as charged, and, unless you do find such facts to be true, you should acquit the defendant. Hootch, moonshine, and corn whisky as used in this instruction means illegally manufactured whisky.'

Instruction 2 defines the punishment that may be assessed if the defendant is found guilty as charged. Instruction 3 is on the presumption of innocence and reasonable doubt, 'and if, upon a view of the whole case, you have a reasonable doubt of the guilt of the defendant, you will give him the benefit thereof and acquit him.' The fourth is the usual instruction on the weight of the evidence and the credibility of the witnesses. No instructions were asked by the defendant.

Learned counsel for appellant in their brief contend there is prejudicial error in the portion of instruction 1 which we have italicized, for the reason that the statute making the selling of hootch, moonshine, and corn whisky a felony was not enacted by the Legislature until 1923, and therefore could not have been in force three years prior to January, 1925. The information is based on section 21 of the Laws of Missouri 1923, p. 242, approved April 3, 1923. It became effective June 25, 1923.

The only evidence of a sale of corn whisky by the defendant prior to October 12, 1924, was drawn out by appellant's counsel on the cross-examination of Sterling Darnell. The witness testified this sale was on a different occasion than the sale to Ball, testified to by Ball and...