State v. Brown
| Decision Date | 25 June 1926 |
| Docket Number | 26456 |
| Citation | 285 S.W. 995 |
| Parties | STATE v. BROWN |
| Court | Missouri Supreme Court |
J. S Clarke, of Ava, for appellant.
Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty Gen., for the State.
The information, filed August 15, 1923, charges the defendant with the sale of one pint of 'moonshine' to Homer Turner on August 2, 1923. On a trial the defendant was found guilty, and sentenced to the penitentiary for a term of two years. On appeal the conviction was reversed because of an erroneous instruction given for the state, and the cause was remanded for a new trial. State v. Brown, 304 Mo. 78, 262 S.W. 710. On a retrial the defendant was again found guilty but the jury failed to agree on the punishment to be inflicted, whereupon the court assessed the punishment at imprisonment in the penitentiary for a term of two years, as authorized by section 4048, R. S. 1919. Sentence was pronounced accordingly, and the defendant appealed. The appeal having been dismissed, the case is here on a writ of error. The plaintiff in error will be referred to as the defendant.
The information is based on section 20, Laws 1923, p. 242, which declares the making, selling, giving away, or other unlawful disposition of any 'moonshine,' 'hootch,' 'corn whisky,' or other intoxicating liquor whatsoever, to be a felony. The information is set out in the opinion of Judge White on the former appeal, and it was held that it sufficiently charged a violation of the statute, and that the motions to quash were properly overruled.
The opinion of Judge White briefly summarized the evidence heard at the first trial. Homer Turner testified that he bought a pint of moonshine whisky from the defendant at his store on August 2, 1923; that he paid the defendant $ 1,50 for it; that he drank it, and it made him drunk; that it looked, smelled, and tasted like 'moonshine,' and it was 'moonshine.' The defendant was present at the trial, and his counsel cross-examined the witness. The testimony was taken down by the official court stenographer, and preserved in the bill of exceptions, which was signed and approved by the judge, and filed by order of the court.
Prior to the second trial, a subpoena was issued for Homer Turner as a witness for the state. The sheriff's return shows that the witness was not found. Thereupon a writ of attachment was issued for the witness. This also was abortive, as Turner could not be found. The court heard evidence tending to show that at the instance of the defendant the witness had left the state and gone to Iowa some two or three weeks before the date of the second trial, and that he was absent and out of the jurisdiction of the court by the procurement and connivance of the defendant. On this showing, the court permitted the prosecuting attorney to read the evidence of the absent witness at the former trial as preserved in the bill of exceptions. This is assigned as error by learned counsel for appellant, for the reason that by its admission the accused was denied the right 'to meet the witnesses against him face to face,' as provided by section 22, art. 2, of the Constitution.
In State v. McO'Blenis, 24 Mo. 402, 69 Am. Dec. 435, it was held that a deposition of a witness taken upon a preliminary examination before a committing magistrate in the presence of the accused may be received in evidence on the trial upon proof of the death of such witness.
In State v. Houser, 26 Mo. 431, it was held that such deposition would not be admissible in evidence on the trial upon proof that the witness is beyond the jurisdiction of the court, but, if the absence of the witness at the trial is procured by the defendant, the deposition would be admissible in evidence. See, also, State v. Moore, 156 Mo. 204, 210, 56 S.W. 883, and State v. Barnes, 274 Mo. 625, 629, 204 S.W. 267, where the foregoing cases are cited approvingly, and it was held that the defendant's constitutional right to be confronted by the witnesses against him is not invaded by admitting the testimony of a witness at the preliminary examination, at which the witness and the defendant were present, and the witness died before the trial.
In Diaz v. United States, 223 U.S. 442, 452, 32 S.Ct. 250, 56 L.Ed. 500, Ann. Cas. 1913C, 1138, the court said:
'The view that this right may be waived also was recognized by this court in Reynolds v. United States, 98 U.S. 145, 158 , where testimony given on a first trial was held admissible on a second, even against a timely objection, because the witness was absent by the wrongful act of the accused. In that case it was said:
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