State v. Clark
| Decision Date | 07 December 1923 |
| Docket Number | No. 3502.,3502. |
| Citation | 256 S.W. 554 |
| Parties | STATE v. CLARK. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dent County; W. E. Barton, Judge.
Paul Clark was convicted of having possession of whisky for beverage purposes, and he appeals. Reversed and remanded.
C. R. Hayes, of Salem, for appellant.
John M. Stephens, of Salem, for the State.
The appellant was convicted in the circuit court of Dent county on an information filed by the prosecuting attorney which charged him with willfully and unlawfully having in his possession whisky, gin, etc., for beverage purposes, against the peace and dignity of the state. A jury returned a verdict of guilty, and assessed a fine of $100, and it is from the judgment entered upon such verdict that this appeal is taken.
The first proposition to which our attention is directed by the brief of appellant is that there is a failure of proof, and a demurrer to the evidence should have been sustained. We are unable to agree with this contention. The evidence produced by the state clearly shows a state of facts from which a jury could infer that the defendant was in possession of "white mule" whisky, and that he gave a drink of it to another party in the presence of a number of people. One of the witnesses says that he saw a bottle which was produced by the defendant, and that the defendant asked one in the party to have a drink of whisky; that a drink was taken out of the bottle, and immediate.y thereafter, the witness testified, he smelled the "white mule" whisky on the breath of the party to whom the drink was given. This is certainly evidence that the contents of the bottle was of an intoxicating nature and it was being used as a beverage.
The most serious point in the case comes up on the manner in which the petit jury was selected by the county court under section 6616, R. S. 1919. In a motion for new trial the appellant raised the question that the jury had been improperly drawn, and that this information came to him after his trial and conviction. Evidence was taken on this motion which is preserved in the transcript before us. From this evidence it is clearly apparent that prior to the drawing of the panel a list containing some 15 or 20 names from each township was prepared by the prosecuting attorney, which list was handed to one of the county judges, who took it and laid it on the table in the room where the names were being placed in the jury box and drawn out. All three of the judges testified that they saw the list, one of them that he looked over it, and the judge to whom the list was handed by the prosecuting attorney testified as follows concerning it:
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State v. Stewart
...232. (3) (a) The evidence on the count charging possession of intoxicating liquor is sufficient State v. Perkins, 240 S.W. 851; State v. Clark, 256 S.W. 554; State v. Heilman, 246 S.W. 623; State Hale, 256 S.W. 1092; State v. Kiely, 255 S.W. 343. (b) The trial court properly received the ev......
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...of a litigant. Boyles v. M'Eowen, 3 N.J.L. 253 (Sup.Ct.1810); United States v. Murphy, 224 F. 554 (D.C.N.D.N.Y.1915); State v. Clark, 256 S.W. 554 (Mo.Ct.App.1923). In passing, we note that N.J.S. 2A:72--8, N.J.S.A., prohibits the return of any person who applies to the sheriff to be summon......
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