State v. Brokaw

• Decision Date: 02 March 1926
• Docket Number: No. 4005.,4005.
• Citation: 281 S.W. 105
• Parties: STATE v. BROKAW.
• Court: Missouri Court of Appeals

281 S.W. 105

STATE v. BROKAW.

No. 4005.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Mississippi County ; Frank Kelly, Judge.

Everett Brokaw was convicted of possession of intoxicating liquor, and he appeals. Affirmed.

J. H. Chunn, of East Prairie, and M. Haw, of Charleston, for appellant.

L. S. Cain, of Charleston, for the State.

BAILEY, J.

Defendant was tried on an information charging him with unlawful possession of intoxicating liquor. He was found guilty before a jury, and his punishment assessed at a fine of $1,000 and imprisonment in the county jail for one year, the maximum penalty. Defendant appeals.

The evidence for the state shows that defendant was the proprietor of a certain poolroom, in connection with which he operated a soft drink and lunch stand at Anniston, Mo. Three officers, as witnesses for the state, testified they searched defendant's said premises on the 26th day of November, 1924, armed with a search warrant, and found therein some soda pop bottles filled with intoxicating liquor. One bottle of the liquor was produced at the trial. It seems that upon searching defendant's place of business the officers found two soda pop cases, one on top of the other, and the alleged whisky was found in the bottom case, in which were other bottles containing soda pop. The officers all testified they knew corn whisky or "white mule" when they saw it, and give it as their opinion that the liquor found in the pop bottles was intoxicating.

Defendant denied any knowledge of the whisky and stated he first learned the whisky was there when the officers found it. Two of defendant's witnesses testified that on the morning of the raid they saw one Jewell Gardner, who was not in the employ of defendant, take some corked soda pop bottles from his coat and place them in a soda pop case. A third witness testified he saw Jewell Gardner in defendant's place of business on the morning the officers searched the premises. Defendant attempted to prove his reputation for being a law-abiding citizen was good, and offered his landlord as his sole witness for that purpose. The latter had not lived in Anniston for four years prior to the arrest, and on cross-examination practically admitted he had never heard defendant's reputation discussed. The state, in rebuttal, produced Jewell Gardner, the alleged "planter" of the liquor, who denied he placed the bottles in the soda pop case as testified to by other witnesses, and further stated he was not in Anniston, but in Crosno moving a house for one George Lewis, at that time.

The state also produced two witnesses who, after qualifying, stated positively that defendant's reputation for violating the prohibition law was bad. On cross-examination by defendant's counsel, one of these witnesses testified that he had heard certain other persons say defendant was "running a bad place," and that he himself had seen people drunk there.

The foregoing is a brief statement of the evidence, produced at the trial. It was unquestionably sufficient to sustain the verdict. State v. Todd et al. (Mo. App.) 270 S. W. 144; State v. Huckabe (Mo. App.) 269 S. W. 691; State v. Ware. (Mo. App.) 274 S. W. 853; State v. Taylor (Mo. App.) 266 S. W. 1017.

Defendant complains of the testimony of the state's witnesses as to his bad reputation, and especially the statement of one witness that he had sat in defendant's place of business and had seen him sell 10 gallons of whisky. Defendant is in no position to raise any question as to these points. He first put his reputation in issue, and the state had the right to offer evidence contra. Furthermore, the evidence as to the sale of the 10 gallons of liquor was elicited by defendant's counsel on cross-examination, and no exceptions of any kind were saved.

The trial court of its own motion gave five instructions similar to those usually given in cases of this character. The first instruction told the jury that, unless they found beyond a reasonable doubt that defendant had intoxicating liquor in his possession, he should be acquitted. The second informed the jury that, if they found defendant did not put the bottles containing the liquor, if any, where found, and if they were put there without his knowledge or consent, defendant should be acquitted. The third, fourth, and fifth instructions were in the usual stereotyped form relating, respectively, to reasonable doubt good character, weight of the evidence and credibility of the witnesses.

Defendant assigns as error the failure of the trial court to instruct the jury that, since the case against him was founded wholly on circumstantial evidence, they could not find defendant guilty unless all the facts were consistent with his guilt and not inconsistent with any reasonable theory of his innocence, citing State v. Moxley, 14 S. W. 969, 15 S. W. 556, 162 Mo. 374 ; State v. Woolard, 20 S. W. 27, 111 Mo. 248 ; State v. Miller, 237 S. W. 498, 292 Mo. 124. In each of the cases cited the defendant was charged with a felony, and also in each case defendant requested an instruction on the law relating to circumstantial evidence which was refused and exceptions saved. Those cases cannot avail defendant here for three reasons, viz.: (1) He is charged with a misdemeanor ; (2) he failed to request any such instruction ; (3) and has saved no exceptions. It has been uniformly held that the provision in section...