State v. Bryant

• Decision Date: 10 November 1947
• Docket Number: 40106
• Parties: State v. James Bryant, Appellant
• Court: Missouri Supreme Court

205 S.W.2d 732

356 Mo. 1223

State v. James Bryant, Appellant

No. 40106

Supreme Court of Missouri

November 10, 1947

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Affirmed.

Charles A. Moon for appellant.

J. E. Taylor, Attorney General, and Wm. C Cockrill, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance and fully apprises the appellant of the crime charged herein. State v. Revard, 341 Mo. 170, 106 S.W.2d 906; State v Pike, 312 Mo. 27, 278 S.W. 725; Sec. 8401, subsec. (g) R.S. 1939. (2) The verdict is sufficient in form and substance and fully complies with the law in every respect. Sec. 8404, subsec. (c), R.S. 1939; State v. Reifsteck, 317 Mo. 268, 295 S.W. 741; State v. Raines, 333 Mo. 538, 62 S.W.2d 727. (3) The verdict is not against the weight of the evidence: is not the result of passion and prejudice and does not assess a punishment which is unjustifiable under the evidence. Sec. 4125, R.S. 1939; State v. Francis, 330 Mo. 1205, 52 S.W.2d 552; State v. Thomas, 82 S.W.2d 885; State v. Smith, 68 S.W.2d 696; State v. Higginbotham, 335 Mo. 102, 72 S.W.2d 65; State v. Todd, 342 Mo. 601, 116 S.W.2d 113; Sec. 8401, subsec. (g), R.S. 1939; Sec. 8404, subsec. (c), R.S. 1939; State v. Zuck, 142 S.W.2d 8; State v. Robinson, 177 S.W.2d 499. (4) The court did not err in forcing said cause for trial on January term, 1946, and did not deny defendant sufficient time for the preparation of his defense after permitting the state to file an amended information. State v. Lambert, 262 S.W. 58; State v. Jennings, 326 Mo. 1085, 34 S.W.2d 50; State v. Pinson, 291 Mo. 328, 236 S.W. 354; State v. Broyles, 317 Mo. 276, 295 S.W. 554; Walker v. United States, 93 F.2d 383. (5) The court did not err in overruling defendant's motion for a continuance on the hearing for a motion for new trial on the grounds that one of the attorneys for defendant was a member of the General Assembly, which at that time had not been in recess thirty days. Sec. 96, Civil Code of Missouri, Laws 1943, p. 383, sec. 847.96, Mo. R.S.A.; Kyger v. Koerper, 197 S.W.2d 946; Sec. 93, Civil Code of Missouri, Laws 1943, p. 382, Mo. R.S.A., sec. 847.93.

OPINION

Leedy, P.J.

Defendant was charged in the Circuit Court of Greene County with violating Sec. 8401(g), R.S. '39 and Mo. R.S.A., in having feloniously driven a motor car while in an intoxicated condition. The jury found him guilty, and assessed his punishment at six months in jail and a fine of $ 100.00. After an unavailing motion for a new trial, he was sentenced in accordance with the verdict. He appealed, but has filed no brief in this court. Jurisdiction of the appeal is in this court because the offense is a felony under Sec. 8404(c) R.S. '39 and Mo. R.S.A.

Defendant was arrested in a car parked in a driveway at or near his home on University Avenue in the City of Springfield. The arrest was made about 4 p.m., following an unsuccessful effort by the arresting officer to "flag down" the defendant because of the erratic course of defendant's car, and the manner in which he was operating it. Summarized, the offending conduct was: "Weaving from one side of the street pretty well over on the other side, not clear against the curbing on the left, but past the center line -- weaving back and forth across the center line"; disregard of a stop sign at a boulevard at which he made a "U" turn, "bouncing into a waterway," and back across the boulevard; failure to stop (or, apparently, to even see the policeman) when signalled so to do by the officer standing out in defendant's traffic lane of the street, and waiving both arms as the latter approached.

Asked if defendant had anything in the car with him, the arresting officer replied, "Yes, sir, he had a cat; had a cat in his arms, and he was stroking its head; all slumped over in his car. It was a white cat, had some yellow spots on it." Describing defendant's condition at that time, the officer further testified that defendant "had hair all over him, he had whiskers, they were sticking out pretty much; his eyes were bloodshot; he could not talk. He tried to talk, but just mumbled. . . . I asked him what his name was. I couldn't understand a word he said." He further testified that defendant could not walk unassisted; that he had to pull his feet around, got him under the arms and pulled him out from under the steering wheel; that he had to hold him up in getting him over to, and in the police car. He was taken directly to police headquarters where, according to a number of witnesses, he was unable to stand unassisted; and it was necessary for two officers to hold him up while he was booked. He was not given the intoxication test because he was "too drunk." Three other police officers, besides the arresting officer, were very positive as to defendant's thoroughly inebriated condition upon arrival at police headquarters.

Defendant denied he was intoxicated at any time while operating his car. The novel aspect of his defense was that while he admitted having drunk some liquor about 3:30 o'clock, its intoxicating effect was sufficiently delayed or slow-motioned as to permit him to drive home in a perfectly sober condition. His admission was that just after leaving his office to go pick up his wife's cat at a small animal hospital, he drank two double shots of Canadian Club whiskey at a bar. And it was his version that, notwithstanding the fact he had reached his office at 6 o'clock that morning, and had had neither breakfast nor lunch that day, he had "just started to feel" the liquor when, 45 minutes after consuming it, he drove the car into his driveway; that he sat in the car three or four minutes before the officer came up, meanwhile he "kept feeling the liquor a little bit, naturally"; that when the second officer arrived, his "head was getting a little dizzy, all right," and by the time he reached police headquarters he was admittedly "feeling pretty rocky."

The first assignment ("that the verdict is against the weight of the testimony") presents nothing for review because too indefinite to conform to the new trial statute, Sec. 4125 R.S. '39, and Mo. R.S.A. See State v. Grove, 204 S.W. 2d 757, (decided at our last conference, and not yet reported) and cases therein cited. Moreover, it could not be sustained if the assignment were reviewable.

The Grove case also rules adversely to defendant the identical assignment made in the second ground...