State v. Bowman

• Decision Date: 18 December 1928
• Docket Number: No. 29170.,29170.
• Citation: 12 S.W.2d 51
• Parties: STATE v. BOWMAN.
• Court: Missouri Supreme Court

12 S.W.2d 51

STATE v. BOWMAN.

No. 29170.

Supreme Court of Missouri. Division No. 2.

December 18, 1928.

Appeal from Circuit Court, Stoddard County; E. P. Dorris, Judge.

Milo Bowman was convicted of selling moonshine whisky, and he appeals. Affirmed.

Lentz & Ray, of Bernie, for appellant.

Stratton Shartel, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.

DAVIS, C.

In an information filed in the circuit court of Stoddard county defendant was charged with selling moonshine whisky. The jury found the defendant guilty as charged in the information, stating in the verdict, however, its inability to agree upon the punishment to be inflicted. Thereupon the court nisi assessed the punishment at two years in the penitentiary. Defendant appealed from the judgment so entered.

The evidence adduced on behalf of the state may be briefly stated. It warrants the finding that, on or about August 6, 1926, one Charles Smith obtained by purchase from defendant at defendant's home, situated in Stoddard county in this state, a pint of moonshine whisky, for which Smith paid defendant $1.50. The evidence for defendant tends to deny that he sold Smith at any time intoxicating liquor of any description. Other facts, pertinent to the issues raised, will be adverted to in our discussion.

I. Defendant argues that the jury should have been instructed to acquit him. The contention is based on the assumption that the testimony of Smith is so inconsistent, contradictory, unreliable, and repugnant as to destroy its credibility. While there is some corroboration of incidents related by Smith, his testimony alone connects defendant with a violation of the law. Smith unequivocally testified that he purchased a pint of moonshine whisky from defendant. The repugnancy in Smith's testimony relied on is that Smith on one occasion stated that he first met defendant in town in a Ford touring car, and, on another, that he first met defendant on that day in defendant's home; and that Smith testified, first, that he did not recollect whether women were on the porch of defendant's home when he arrived, or whether he asked for a drink of water, or where the defendant was, later testifying, however, that no women were on the porch and that he did not ask for a drink of water, or concerning defendant's whereabouts. While the conflicting statements made by Smith may have tended to impeach his testimony, yet it is evident as a matter of law that they are not of such a nature as to utterly destroy the truth of his statement connecting defendant with the sale of the whisky. There can be no doubt but the credibility of Smith's testimony was properly submitted to the jury as an issue of fact, and, the jury having passed thereon unfavorably to defendant, the issue was thus settled.

In this connection it is further said that Smith was so flatly contradicted by other witnesses as to completely destroy the credibility of his testimony. If we admit the force of the postulate, we must rule that, when evidence is adduced by a defendant tending to prove his innocence, even though the state's proof tends to establish his guilt, the courts must perforce acquit him as a matter of law. This contention, if sustained, would subvert the rule, in force from time immemorial, that a prima facie case made by the state constrains the court to submit the issue of defendant's guilt to the jury. The offered instruction, requesting an acquittal, was properly overruled.

II. Defendant charges that the trial court failed to acquire jurisdiction to try defendant, because the record does not affirmatively show that he was accorded a preliminary examination, thus rendering the prosecuting attorney without power to file an information against him, as shown by section 3848, Revised Statutes 1919. The record proper fails to show that defendant was accorded a preliminary examination. It does show that he filed a motion to quash the information on that ground. However, we find nothing in the record tending to show that a hearing was had on the motion, or that defendant requested a hearing on the motion and was refused one by the court, or that he made an offer of proof in that regard, or saved an exception of any description. While defendant filed a motion to that end, it is axiomatic that a motion does not prove itself. It was necessary for defendant to adduce proof in support of his motion, or, if refused a hearing by the court on it, to make an offer of proof and save exceptions to the refusal of the court to grant a hearing. It will be presumed that a preliminary was had before the prosecuting attorney filed the information, and, if there was a failure to accord him one, it was an irregularity which the defendant must take...