State v. Cain

• Decision Date: 25 March 1931
• Docket Number: No. 30236.,30236.
• Citation: 37 S.W.2d 416
• Parties: STATE v. CAIN.
• Court: Missouri Supreme Court

37 S.W.2d 416

STATE v. CAIN.

No. 30236.

Supreme Court of Missouri, Division No. 2.

March 25, 1931.

Appeal from Circuit Court, Atchison County; D. D. Reeves, Judge.

Lloyd Cain was convicted of operating a motor vehicle while in an intoxicated condition, and he appeals.

Reversed and remanded.

Stratton Shartel, Atty. Gen., and Henry H. Stern, Asst. Atty. Gen., for the State.

WESTHUES, C.

The prosecuting attorney of Atchison county, Mo., filed an information in the circuit court, charging the defendant with operating a motor vehicle while in an intoxicated condition. Defendant was tried before a jury November 18, 1929, convicted, and his punishment fixed at two years in the state penitentiary. After the motion for new trial was overruled, defendant was duly sentenced, from which sentence he has appealed.

Defendant, in his motion for new trial, submits five reasons for a reversal of the judgment. They are, in substance, as follows: First, that the court erred in not striking out the testimony of witness Martha Politz, because the witness did not identify the defendant; second, that there is no substantial evidence in the record to support the verdict; third, error in giving instruction No. 3; fourth, error in permitting the state to use witness John J. Wright when his name had not been indorsed on the information prior to the trial; fifth, failure of the court to give defendant peremptory instruction at the close of the case.

Assignments Nos. 2 and 5 pertain to the same point, to wit, sufficiency of the evidence. The state offered a number of witnesses who testified as to actions of the defendant, from which the jury might well conclude that defendant was intoxicated. These witnesses had known the defendant for many years. Their testimony discloses that defendant displayed a very unsteady gait while walking along the streets of Westboro. Witnesses described this in various ways, to wit: Defendant walked crossways and zigzag, weaving back and forth, walking crooked and wabbly, etc; that ordinarily the defendant had a normal walk. The evidence further discloses that defendant had trouble getting into his car and starting it. When he finally started the car, it sounded as if in low gear with the engine running at full speed. The car circled and collided with a parked car belonging to John J. Wright. Defendant backed away from the Wright car and drove away. Under this evidence, the court did not err in refusing defendant's peremptory instruction. State v. Concelia, 250 Mo. 411, 157 S. W. 778; State v. Fields, 262 Mo. 158, 170 S. W. 1132; State v. Flynn, 258 Mo. 211, loc. cit. 224, 167 S. W. 516.

Defendant complains of instruction No. 3; this being the instruction on the credibility of witnesses. The particular objection made to this instruction is that the clause "the motives actuating the witness in testifying" should have been followed by the words "if any." Defendant contends that the instruction, as written, assumes the witnesses who testified for the defendant, and also the defendant, had some ulterior motive in testifying. This is a general instruction, and applies to all of the witnesses in the case. Instructions similar to the one in question have been approved by this court in State v. Garrett, 276 Mo. loc. cit. 309, 207 S. W. 784; State v. Hudspeth, 159 Mo. loc. cit. 200, 60 S. W. 136 (instruction No. 20); State v. Hicks, 92 Mo. 431 and 436, 4 S. W. 742 (instruction No. 5).

There is no merit in the fourth assignment of error. Witness John J. Wright testified with reference to the damage done to his car, by reason of the accident caused by defendant. This evidence was cumulative. The defendant and other witnesses testified that Wright's car was damaged as a result of the collision. There was no dispute in the evidence on this point. Therefore defendant's rights were not prejudiced by the ruling of the court in permitting this witness to testify.

The first assignment of error is with reference to the testimony of witness Martha Politz. This witness, after answering a few preliminary questions, testified in part as follows:

"Q. You are a high school girl at Tarkio? A. Yes.

"Q. I will ask you if you can recall the 26th day of September, 1929? A. Yes.

"Q. I will ask you, on that date, if in the evening sometime, you saw a person whom you afterwards found out to be the defendant, Lloyd Cain? A. Yes, sir.

"Q. You tell the jury just what the circumstances were under which you saw him. Tell just what he did. A. Well, it was high school labor day, and I was asking this fellow for a nickel to put in the orthophonic, and I went up to him, and he said, `Well, I will give you all the nickels you want if you will give me a kiss,' and I could tell right then he was drunk, by his breath, and so then I started away and he started to put his arms around me, and I started to run, because I knew the fellow was drunk and it was time for me to beat it.

"Q. That is about what happened. About what time in the evening was that? A. It was between ten and ten-thirty, right after the show was out.

"Mr. Gerlash: I think that is all."

Cross-examination by Mr. Hunt, counsel for defendant:

"Q. Miss Martha, did you know at that time that the man who had this conversation with you was the defendant in this case? A. I did not.

"Q. You didn't know it at any time that evening? A. No, not that evening.

"Q. You never saw the man again until today, did you? A. No.

"Q. Is that the man sitting here? A. I don't know.

"Q. Then you don't know whether this— stand up, Mr. Cain—you don't know whether this young man here, the defendant, Mr. Lloyd Cain, was the man whom you say you smelled liquor on his breath, and who tried to kiss you, do you say this is the man? A. I found out afterwards it was—

"Q. Do you say this is the man? A. No, I couldn't say it.

"Q. You couldn't identify this gentlemen then as the one you have told about, and anything you may have talked about thereafter is merely hearsay, isn't it? That is, what somebody else told you? A. Yes.

"Q. Anything you may have subsequently learned, if anything, was what somebody else told you, wasn't it? A. I just found out afterwards; I just heard the name.

"Q. But don't know yet that this is the man that you desired to get the nickel from on this particular day, do you? A. I don't remember the man's face.

"Q. Don't remember his face. You may sit down, Mr. Cain, I move that the entire testimony of this witness be stricken from the record for the reason there is a complete failure of identification between the man she mentioned and the defendant now on trial.

"The Court: The motion to strike will be overruled. To which action of the Court in overruling said motion to strike, defendant then and there at the time excepted and still excepts.

"Mr. Hunt:...