State v. Caviness
| Citation | 33 S.W.2d 940 |
| Decision Date | 20 December 1930 |
| Docket Number | No. 30656.,30656. |
| Parties | THE STATE v. WILLIE CAVINESS, Appellant. |
| Court | United States State Supreme Court of Missouri |
Appeal from Camden Circuit Court. — Hon. C.H. Skinker, Judge.
AFFIRMED.
Barney Reed for appellant.
(1) The court erred in not sustaining defendant's plea in abatement and also erred in overruling defendant's motion in arrest of judgment, because the information charged no crime under the laws of this State against the defendant. State v. Bostic, 285 S.W. 432; State v. Pinto, 279 S.W. 147. (2) Witness Stamper testified that he made two trips, buying a pint of whiskey each time from the defendant. It further developed by the evidence that on the evening of the same day Stamper was found unconsciously drunk in his car, was placed in jail, and that the following day he gave the information to the officers that the defendant had sold him the whiskey, for which statement he was liberated from jail and allowed to return to his home. All other witnesses testifying in the case show conclusively that the defendant was not guilty. There is nothing in the evidence to discredit the defendant other than the testimony of Stamper alone. The evidence of Roach and Creach, two disinterested witnesses, the defendant himself, his wife and sister all testified that he was innocent of the crime charged and did not sell or dispose of any whiskey to witness Stamper.
Stratton Shartel, Attorney-General, and Edward G. Robison, Assistant Attorney-General, for respondent.
(1) The information is sufficient in form, especially when no motion to quash was filed and it was only attacked after verdict. Laws 1923, sec. 21, p. 242; State v. Vance, 267 S.W. 1118; State v. Bostic, 285 S.W. 433. (2) The plea in abatement was properly overruled. Sec. 3828, R.S. 1919, only provides for the binding over or holding to bail if it appears to the justice that a felony has been committed and that there is probable cause to believe the prisoner guilty. A finding and recital of these facts as to commission of the felony and the probable cause that the prisoner is guilty are not required to be set forth by the justice in his docket, but the holding to bail or the discharge is all that is required. Turner v. People, 33 Mich. 367; Sec. 3761, R.S. 1919. The fact that the justice issues a warrant is all that is required, and his docket is not required to show those facts that would authorize the issuance of the warrant. State ex rel. v. Stobie, 194 Mo. 44; Ex parte Perse, 286 S.W. 735. (3) This court will not interfere with a verdict of guilty as being against the weight of the evidence. This was for the trial court who saw the witnesses, heard them testify and observed their demeanor. State v. Hedges, 295 S.W. 576. (4) "Feloniously" does not have to be defined in the instructions, as it is descriptive of the grade of the offense and is used for this purpose only. State v. Rowland, 174 Mo. 378.
The following opinion written by one of our Commissioners, except as to our disposition of appellant's assignment of error in respect to Instruction 1, is adopted by the court as modified.
Defendant was charged by an information in the Circuit Court of Camden County, Missouri, with feloniously selling hootch, moonshine or corn whiskey. Upon a trial, March 25, 1929, before a jury, he was convicted and his punishment fixed at two years in the state penitentiary. Motion for new trial was filed, overruled and defendant sentenced. From this sentence and judgment, he has appealed to this court.
On December 13, 1928, the prosecuting witness, Dallas Stamper, and one McCubbin drove to Linn Creek in Stamper's car. After spending some time in Linn Creek, Stamper met Dubb, or Clark, Creach and with him drove to the home of defendant, arriving there about the noon hour. Defendant lived about three miles from Linn Creek. Defendant was eating dinner at the time of the arrival and with him were his wife and the defendant's sister, Verna Miller. There is a sharp conflict in the testimony as to what transpired at the defendant's home. According to witness Stamper, a short conversation was had with defendant, when witness Creach spoke of buying some whiskey; that defendant produced a pint and Stamper paid defendant $1.50 for the whiskey. Then he, Stamper, and Creach both took a drink and left the place to return to Linn Creek. According to Stamper, the two drove toward Linn Creek, but before arriving there, returned to the home of defendant to buy more whiskey. On reaching defendant's place the second time, he, Stamper, bought another pint of whiskey. Witness further testified that he met Jim Roach in the yard, as they were leaving, after buying the second pint; that Roach also took a drink. Stamper further testified that what he bought was corn whiskey. According to Stamper, he and Creach, after leaving Roach, started toward Linn Creek, but did not reach their destination, intoxication overtaking him to such an extent that he, to use a common expression, passed out, and was not conscious of what transpired until the next day. Officers arrived in time, arrested Stamper, placed him in jail and held him there until the following day. When pressed by the officers as to where he had purchased the whiskey, Stamper informed them he had bought it from the defendant. He was then permitted to sign a bond and released from custody. The other testimony in behalf of the State consisted chiefly in introducing in evidence the whiskey found on witness Stamper and that the officers had found him dead drunk and had arrested him and placed him in jail.
The evidence on the part of defendant is in substance, as follows: Dubb, or Clark, Creach, who was with Stamper, denied positively that the defendant sold Stamper or Creach any whiskey; that Stamper had the whiskey before they arrived at the defendant's home the first time; also, that Roach was at the defendant's home the first time the witness and Stamper arrived there; that at that time witness Stamper had two bottles of whiskey. Witness Roach testified that he was at the defendant's home when Stamper and Creach arrived; that Stamper at that time had whiskey and the defendant did not sell Stamper anything while he was present; that Stamper offered him a drink and he informed him he did not desire to drink all of his whiskey. Stamper replied that he had plenty more and produced another bottle. Then, according to witness Roach, he, Roach, took a drink and went his way. Witness Verna Miller, sister of the defendant, testified the defendant did not sell Stamper or Creach any whiskey and that Stamper had whiskey when he arrived at the defendant's home. The defendant's wife testified substantially the same, and also testified that when Stamper and Creach arrived at their home the second time Stamper was pretty drunk and defendant ordered them away from the house, asking Creach to take Stamper away. The defendant positively denied he sold any whiskey to Stamper on that day or any other day and also testified that when Stamper and Creach arrived there the second time he asked Creach to take Stamper away because he was pretty drunk.
Then the defendant placed three witnesses on the stand to impeach the reputation of prosecuting witness Stamper for truth and veracity and morality. All three of these witnesses testified that Stamper's reputation was bad, both as to truth and veracity and morality. It was also in evidence that Stamper had been convicted of violating the prohibition laws.
In rebuttal, the State offered witness McCubbin, who testified that he drove to Linn Creek in the morning with Stamper and he did not notice Stamper having any whiskey. County Clerk Huddleston testified that Stamper was in his office about noon on some day about the 13th and at that time Stamper did not appear to have been drinking. The State also offered Luke Moulder, J.M. Hawkins and James Carson as witnesses to testify as to the good reputation of the prosecuting witness for truth and veracity. All of these witnesses testified in substance that they had never heard the reputation of Stamper questioned as to truth and veracity, but his reputation for morality was bad. This is in substance all the testimony offered at the trial.
The defendant filed a plea in abatement in this case contending that the complaint filed before the justice of the peace was signed by one not having any actual knowledge of the Preliminary crime charged. Also that the transcript of the Hearing. justice of the peace contains no finding that a crime had been committed or that there was probable cause to believe the defendant guilty; that, therefore, no legal preliminary hearing was had. In support of this plea in the circuit court, the defendant introduced the complaint filed before the justice and the transcript of the justice of the peace. As to the first point, it is sufficient to state no showing was made in the circuit court that the complaining witness had no actual knowledge of any fact with reference to the alleged crime. As to the second, the transcript of the justice of the peace recites in substance, as follows: That a complaint had been filed, under oath, charging the defendant with a felony; that a warrant was issued by the justice and a return made by having the defendant before the justice of the peace. A day was set for the trial, the defendant appearing, pleading not guilty. A hearing was held, evidence offered by the State and also by the defendant; and further, that the justice held the defendant under bond in the sum of $1,000 to appear in the circuit court the fourth Monday in March,...
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