State v. Blocker

• Decision Date: 22 December 1925
• Docket Number: 26631
• Citation: 278 S.W. 1014
• Parties: STATE v. BLOCKER
• Court: Missouri Supreme Court

278 S.W. 1014

STATE v. BLOCKER

No. 26631

Supreme Court of Missouri, Second Division

December 22, 1925

Robert W. Otto, Atty. Gen., and Jams A. Potter, Sp. Asst. Atty Gen., for the State.Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

OPINION

HIGBEE, C.

The information charges that the defendant, at Dunkin county, on or about November 19, 1923, unlawfully sold intoxicating liquor commonly called moonshine, corn whisky, hootch, and white mule; said intoxicating liquor containing more than one-half of 1 per cent. of alcohol. At the first trial the jury disagreed, and were discharged. On August 27, 1924, at the second trial, the jury by their verdict found the defendant guilty as charged in the information, and assessed his punishment at imprisonment in the penitentiary for a term of two years. After motions for new trial and in arrest were filed and overruled, sentence was pronounced in accordance with the verdict, and the defendant was granted an appeal to this court.

Walter Clubb, the prosecuting witness, then living in Arkansas, testified:

'I came to Kennett in Dunklin county from Senath on November 19, 1923, about 6 p. m. on the train. I met Fatty Cullins, and asked him where we could get a drink. We finally met Mr. Blocker (the defendant), and he said, 'Go down by the Terry corner and wait for me to come,' and when he comes on down there he puts a bottle in my pocket, and I hands him $ 1, and we goes down and meets Mr. Stevens (the policeman). Fatty walked down street. I met Mr. Stevens, and I turned around. I thought it was Fatty coming out to take a drink, and it was the law. Stevens arrested me and put me in jail. In about 30 minutes Blocker was put in jail. We was talking there, and he said it would have been better to have paid a fine than for me to have hollered on him, and says, 'You might have knowed me,' and I says, 'Ah, shucks' Stevens took the bottle from me. I bought this stuff between 7:30 and 8 o'clock.'

Cross-examination:

'I had no conversation with the man I bought the whisky from. Fatty went and made the deal for the whisky, and he went and got it and come by and put it in my pocket, and I give him $ 1 and walked off. When I first saw Stevens I thought it was Fatty. He asked what I had in my pocket, and reached and got it. Blocker walked down street and left us.'

Stevens testified he arrested Walter Clubb, took the bottle out of his pocket, and put him in jail. This was between 7:30 and 8 p. m., November 19. 1923. Within 30 minutes he met the defendant and put him in jail. He labeled the bottle, and it was kept until the trial, when it was produced, identified, and shown that it contained intoxicating liquor commonly called corn whisky, hootch, moonshine, or white mule.

The defendant testified that about 1:30 p. m., on November 19, 1923, he and Dewey White drove to Senath and returned between 6 and 6:30 p. m., just about sundown (the sun was just then setting); that he then took his wife, daughter and another young lady on a drive towards Senath, and returned in an hour or hour and a half, somewhere between 7:30 and 8 p. m., to the Malone picture show, parked his car, bought four tickets, and, while standing around, Clubb and Stevens passed by. The women went to the picture show, and he went to a restaurant and ate his supper, and later was arrested; that he did not put a bottle in Clubb's pocket; 'never seen him till I seen him in jail.' Referring to the conversation Clubb testified he had with defendant in jail, defendant denied saying anything of the kind. The defendant's wife and daughter and the young lady corroborated defendant's testimony that he returned from Senath about 6 or 6:30 p. m.; they did not look at the clock, but were sure the sun was then setting; and that he then took them on a drive and returned at the time stated, and he then got tickets, and the ladies went to the picture show. It was shown by an almanac that the sun set on November 19, 1923, at 4:53 p. m.

The instructions given by the court clearly and fairly submitted the case to the jury, and it is unnecessary to set them out. The principal defense was an alibi. The defendant and the members of his family testified with one voice that he returned from Senath between 6 and 6:30 p. m.; they were sure that the sun was just then setting; that they then took a drive for about an hour or an hour and a half; and it was between 7:30 and 8 p. m. when they drove to Malone's picture show. The jury knew that the sun set on the day in question at 4:53. The witnesses for the defendant admitted they did not look at a clock, but were merely giving their best judgment as to the time they started on the drive and their return. The evidence presented issues of fact which were solely for the jury. The verdict is supported by substantial evidence, and, having received the approval of the learned trial court, is conclusive on appeal.

Appellant complains in his motion for new trial that the court erred in permitting improper cross-examination of the defendant. The bill of exceptions shows that no objection was made to any question asked the defendant on his cross-examination.

Error is assigned in permitting improper cross-examination of the defendant's witness Binkley. Binkley testified that after supper on the evening the defendant was arrested he saw Clubb, Fatty Cullins, and Henry Williamson sitting 'on the porch on the old theater. Henry left...