State v. Combs
| Decision Date | 05 June 1925 |
| Docket Number | NO. 26117.,26117. |
| Citation | 273 S.W. 1037 |
| Parties | STATE v. COMBS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.
Harold Combs was convicted of unlawful sale of moonshine, and he appeals. Affirmed.
Sam Withers, of Carrollton, for appellant. Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State.
The appellant was charged by information in the circuit court of Carroll county with the felonious and unlawful sale of "moonshine" in violation of the act approved April 3, 1923 (Laws 1923, pp. 236-247). Tried to a jury, he was found guilty, and his punishment assessed at two years' imprisonment in the penitentiary. From that judgment he appeals to this court.
On the 13th day of September, 1924, the prosecuting attorney of Carroll county, a deputy sheriff, and two other persons, named respectively, Dickson and Billups, met in the sheriff's office in Carrollton, marked a $1 bill furnished by the prosecuting attorney, and made a memorandum of the description of same. This bill was given by the prosecuting attorney to Dickson, and he and Billups went out to the house of the appellant in Carrollton, and asked the latter if he had any whisky. He replied in the affirmative, and went out into a weed patch near his house, and brought out a filled pop bottle, and handed it to Dickson, who gave him therefor the marked $1 bill and some small change. Billups then alighted from the car, and, said to the appellant; The three then got into the car, and the appellant was taken and delivered to the sheriff. Upon being searched, the marked dollar bill was found in the possession of the appellant, and in reply to an inquiry he said he had gotten it from Dickson. At the trial a witness for the state, named Church, qualified as an expert in the analysis of liquids, testified that he had frequently made analyses of moonshine to determine its alcoholic content; that he made an analysis of the contents of the bottle offered in evidence and identified as the one sold by the appellant to Dickson, and that it contained 52 per cent. of alcohol by volume, was a potable liquor, and was capable of being used as a beverage; and that it was distilled liquor, and could be designated as "moonshine." When arraigned, the appellant, by his counsel, filed a motion to quash the information, which was overruled. At the trial he introduced no testimony.
The information, omitting caption and the signature and oath of the prosecuting attorney, is as follows:
"Smith B. Atwood, prosecuting attorney within and for the county of Carroll in the state of Missouri, upon his oath of office, informs the court that on the 13th day of September, 1924, at and in the said county of Carroll and state of Missouri, one Harold Combs did then and there unlawfully, willfully, and feloniously sell one-half pint of `moonshine,' to one Dewey Dickson, against the peace and dignity of the state."
I. The motion to quash, after alleging. generally that the information does not charge that the defendant has committed any offense against the law, avers that the charge is based upon the act approved April 3, 1923 (Laws 1923, pp. 236-247), and incorporates therein the title to said act; that section 21 of said act is vague, uncertain, and meaningless, and does not define any crime or offense against this defendant, and is incapable of enforcement; that this section is inconsistent, in that it does not make the conduct of the defendant or the act of any person a crime; and that a prosecution and conviction thereunder would violate the due process of law of the Constitution, and punish the defendant for the violation of a statute which has no legal existence. In his motions for a new trial and in arrest of judgment appellant continues to stress the invalidity of the statute under which these proceedings were had.
Section 21, Laws 1923, p. 242, is as follows:
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State v. McGee
...particle that marks an alternative generally corresponding to `either' as `this or that.'" [46 C.J. 1124, sec. 1; State v. Combs (Mo.), 273 S.W. 1037, 1039(1); Dodd v. Independence S. & F. Co., 330 Mo. 662, 671(8), 51 S.W. (2d) 114, 118(9).] "A disjunctive conjunction coordinating two or mo......
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State v. Graves
...991. (7) Lower court did not commit error in forcing defendant to testify as to former convictions. Secs. 1916, 4081, R.S. 1939; State v. Combs, 273 S.W. 1037; State v. Miller, 292 S.W. 440; State v. Williams, 6 S.W. (2d) 915, 320 Mo. 296; State v. London, 84 S.W. (2d) 915; State v. Bagby, ......
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State v. Howard
...584, 274 S.W. 466. The contention that the statute is void for uncertainty is answered adversely to defendant's contention in State v. Combs (Mo.), 273 S.W. 1037, and State v. Griffith, 279 S.W. 135, 139. There was no error in overruling the motion to quash the III. The sheriff testified th......
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State v. McGee
... ... said person ... so guilty of the above ... mentioned acts or act , shall, on conviction, be ... punished." (Italics ours.) Or "is a ... disjunctive particle that marks an alternative generally ... corresponding to 'either' as 'this or ... that.'" [46 C. J. 1124, sec. 1; State v. Combs ... (Mo.), 273 S.W. 1037, 1039(1); Dodd v. Independence ... S. & F. Co., 330 Mo. 662, 671(8), 51 [336 Mo. 1102] ... S.W.2d 114, 118(9).] "A disjunctive conjunction ... coordinating two or more words or clauses each one of which ... in turn is regarded as excluding consideration of the ... ...