State v. Casteel
| Decision Date | 28 October 1933 |
| Docket Number | 32850 |
| Parties | STATE v. CASTEEL |
| Court | Missouri Supreme Court |
Roy McKittrick, Atty. Gen., and Wm. W. Barnes, Asst. Atty. Gen for the State.
WESTHUES, Commissioner.
Appellant has appealed from a judgment of conviction in the circuit court of Webster county of selling one gallon of moonshine corn whisky. A jury assessed his punishment at two years imprisonment in the penitentiary.
The state adduced evidence that witnesses Hudson and Bowers went to the home of defendant during the month of August, 1931 and purchased one gallon of moonshine, corn whisky, for which they paid $ 4. Defendant denied selling the whisky. The evidence on part of the state was sufficient to support the verdict.
A motion to quash the information was filed and overruled. The information is sufficient. It charges the offense in the language of the statute (Mo. St. Ann. § 4500, p. 4662). The information charges the offense to have been committed on September 27, 1931. It was filed and sworn to September 17, 1931. The defendant testified that the warrant served alleged the offense to have been committed August 27, 1931. The date recited in the information is evidently a clerical error and the record discloses that it did not mislead the defendant. He met the issues presented by the state as if the sale had been made in August. The error as to the date does not invalidate the information.
Complaint is made that the trial court permitted the information to be amended by inserting the word 'sell.' This amendment was made before the trial. Section 3508, R. S. Mo. 1929 (Mo. St. Ann. § 3508, p. 3131), authorizes amendments to be made before trial either as to form or to substance. The trial court, therefore, properly permitted the amendment to be made. State v. Nichols, 327 Mo. 1237, 39 S.W.(2d) loc. cit. 778 (1).
Error is assigned to the giving of instruction No. 1, which authorized a conviction if the jury found that defendant had sold corn whisky as charged in the information. It is urged that there was no evidence to support the charge and, therefore, the instruction was not authorized by the evidence. As previously stated, a number of witnesses testified as to the sale and there was substantial evidence in the record from which the jury could find that the defendant sold corn whisky. The point is, therefore, not well taken.
Assignment No. 5, in the motion for new trial, assigns error on the part of the trial court in proceeding to trial when defendant had not been accorded a preliminary hearing. No showing was made at the trial pro or con on this question. It is not incumbent on the state to make proof that a preliminary hearing was accorded before proceeding to trial. If a defendant desires to raise that question, he should file a plea in abatement and offer proof that he was not accorded a preliminary hearing. In this case the question was first raised in the motion for...
To continue reading
Request your trial