State v. Cook

• Decision Date: 18 February 1928
• Docket Number: 28375
• Citation: 3 S.W.2d 365,318 Mo. 1233
• Parties: The State v. A. J. Cook, Appellant
• Court: Missouri Supreme Court

3 S.W.2d 365

318 Mo. 1233

The State v. A. J. Cook, Appellant

No. 28375

Supreme Court of Missouri

February 18, 1928

Appeal from Scott Circuit Court; Hon. Frank Kelly, Judge.

Affirmed.

Alexander & Coffer for appellant.

(1) There is no proof sufficient as a matter of law that the liquid was hootch, etc., and overruling demurrers A and B was reversible error. State v. Pinto, 279 S.W. 144; State v. Gatlin, 267 S.W. 797; State v Elmer, 267 S.W. 934; State v. St. Clair, 247 S.W. 203; State v. Brown, 262 S.W. 710; 33 C. J 491, sec. 1; 33 C. J., 577, sec. 194, note 81; State v Vandiver, 276 S.W. 1034; State v. Belyen, 295 S.W. 104. (2) Submitting the case on the conclusion of testimony of witnesses Miller, Sullinger and Stearns was reversible error. State v. Gatlin, 267 S.W. 797; Kelley's Cr. L. & P. (3 Ed.) sec. 372, note 88; Ib., sec. 373, note 105. (3) Admitting the reputation evidence of Bowers, Kenyon, Akins and Sullinger was reversible error. They were not qualified. Underhill Cr. Evi. (3 Ed.) sec. 78, note 65. (4) Excluding inquiry as to knowledge and report of instances of criminality and moral turpitude of Miller by witnesses Bowers, Kenyon, Akins, and Sullinger was reversible error. Issue was tendered by the State on that issue. Kelley's Cr. L. & P. (3 Ed.) sec. 382, note 220; State v. Parker, 172 Mo. 191; State v. Cooper, 271 S.W. 473; State v. Higgs, 259 S.W. 458; State v. Davis, 225 S.W. 707. (5) The testimony of Sullinger as to Kinder was not rebuttal evidence and was reversible error. It did not relate to April 25, 1926, but to another day. Kelley's Cr. L. & P. (3 Ed.) sec. 368, note 71; Ib., sec. 382, note 217. (6) The court abused its discretion to the injury of the defendant in admitting the testimony of the following witnesses in violation of the exclusion rule, and whose names had not been indorsed: Bowers, Kenyon and Akins. Kelley's Cr. L. & P. (3 Ed.) sec. 210, note 9; State v. Gesell, 124 Mo. 531. (7) The court erred to the prejudice of defendant in not granting a new trial on the uncontradicted affidavit of A. J. Cook and Harry Cook as to witness Sullinger being coached in the trial by secret signal from Akins. Kelley's Cr. L. & P. (3 Ed.) sec. 432 (8) The court abused its discretion to the substantial injury of the defendant in admitting the rambling testimony of witnesses as to acts, conduct and statements long after the alleged offense and irrelevant thereto and out of the presence and hearing of the defendant. State v. Hayes, 247 S.W. 165; Kelley's Cr. L. & P. (3 Ed.) sec. 372, note 91; State v. White, 292 S.W. 411; Underhill Cr. Ev. (3 Ed.) sec. 512, and sec. 543, note 51. (9) Instruction 1 was reversible error. It did not follow the charge or the evidence as to the date of the alleged offense, and was a roving commission. State v. Campbell, 260 S.W. 542; Kelley's Cr. L. & P. (3 Ed.) sec 395, note 318. (10) Instruction 3 was reversible error. It intimated to the jury that "presumption of innocence" is a fiction. "If upon a view of the whole case" let the jury ramble outside the evidence. It cautioned the jury as to what was not a reasonable doubt, instead of correctly defining the term. The word "substantial" should not have been used in this case. Kelley's Cr. L. & P. (3 Ed.) sec. 397, notes 356 and 357. (11) The court erred in not giving an instruction defining the term hootch, moonshine, corn whiskey. Under the evidence such instruction was necessary Kelley's Cr. L. & P. sec. 390, notes 295 to 300.

North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.

(1) This court is precluded from reviewing appellant's demurrer to the evidence interposed at the close of the State's case. Subsequent introduction of testimony waived defendant's first demurrer. State v. Mann, 217 S.W. 67; State v. Winkler, 273 S.W. 1040; State v. McMurray, 284 S.W. 806. (2) The trial court properly overruled the demurrer interposed at the close of all the evidence. The evidence was sufficient to take the case to the jury. It is the peculiar duty of the jury to pass on the weight of the evidence and the credibility of the witnesses. Where, as in this case, the jury's verdict is supported by substantial evidence, this court will not interfere. State v. Alexander, 278 S.W. 709; State v. Griffith, 279 S.W. 138; State v. Morris, 279 S.W. 141; State v. Pinto, 279 S.W. 144. There was direct evidence that defendant sold corn whiskey. An information or indictment charging sale of hootch, moonshine and corn whiskey is supported by evidence of a sale of corn whiskey. State v. Sissom, 278 S.W. 704. (3) The trial court properly admitted the testimony of state witnesses Miller and Sullinger to the effect that the contents of the purchase was corn whiskey. The witnesses were properly qualified. Their statements were not conclusions. The weight of their testimony was for the jury to decide. State v. Hedrick, 296 S.W. 152; State v. Wright, 312 Mo. 626; State v. Brown, 285 S.W. 995; State v. Marshall, 297 S.W. 63; State v. Moore, 279 S.W. 133; State v. Combs, 273 S.W. 1037; State v. Miller, 285 S.W. 90. Furthermore, it is exceedingly doubtful whether defendant's assignment in the motion for new trial is sufficient to present this matter to the court for review as required by Section 4079, Laws 1925, page 198. The questionable assignments in the motion for new trial are numbered five and six. These assignments merely call attention to the testimony of witnesses Miller and Sullinger, but do not point out the particular parts of their testimony deemed to be conclusions and opinions. The record conclusively shows that witnesses Sullinger, Akins, Kenyon and Bowers were properly qualified as reputation witnesses. There is nothing in the record to show that they were testifying "from their supposed personal knowledge." This court will not review complaints going to the exclusion of evidence where the record contains no offer of proof. State v. Carey, 313 Mo. 436. Aside from the foregoing, there is no merit in the complaint inasmuch as specific acts of moral turpitude and criminality are never competent to show general reputation. State v. McLaughlin, 149 Mo. 33; State v. Harris, 209 Mo. 443. (4) The trial court properly admitted the testimony of witness Sullinger in rebuttal. The admission of rebuttal evidence rests in the discretion of the trial judge. The record does not indicate an abuse of judicial discretion. State v. Keller, 281 S.W. 960; State v. Steelman, 273 S.W. 409; State v. Farrar, 285 S.W. 1000. (5) There is no evidence in the record that the State's witnesses had been coached to give evidence in the trial by secret signals from witness Lee Akins. State v. Ackerman, 285 S.W. 739. (6) The trial court did not err in giving the jury instruction numbered one. It is a proper charge on the law of the case and is not subject to the criticisms leveled at it. Similar instructions have been approved by this court. It should be considered with instruction numbered three. State v. Brown, 263 S.W. 710; State v. Gatlin, 267 S.W. 797. The trial court properly refused to give an instruction defining the term "hootch, moonshine and corn whiskey." This court has repeatedly held that it is unnecessary to define terms which are understood by all of ordinary intelligence. State v. Griffith, 279 S.W. 140; State v. Marshall, 297 S.W. 63.

OPINION

Walker, J.

The appellant was charged by indictment in the Circuit Court of Cape Girardeau County with the sale of hootch, moonshine and corn whiskey. A change of venue was granted to Scott County where upon a trial the appellant was found guilty and his punishment assessed at a fine of $ 500. From this judgment he appeals.

A neighbor of the appellant, named Miller, testified that on the day named in the indictment he bought three pints of moonshine whiskey from the appellant. The latter denied this charge. A witness who had accompanied Miller to a point near the appellant's residence and was awaiting his return therefrom testified that upon Miller's return he had three pints of liquor, some of which the witness drank and that it was moonshine whiskey. Other witnesses who had drunk a portion of the liquor gave like testimony as to its character. The reputations for truth and veracity of Miller and some of the witnesses for the defense was stated to be bad by witnesses introduced by counsel for the respective parties. There was testimony contravening the statements of these witnesses, especially in regard to the reputation of Miller for truth, to the effect that it was good. The jury gave little credence to the testimony for the defense as attested by the verdict.

In a review of this case we are concerned, both under the Constitution and the statutes regulating criminal procedure, not with what might have been or should have been preserved for our consideration, but what was preserved in such a manner as to entitle it to a review. The motion for a new trial, as comprehensive in its details as the proverbial mantle of charity, is embodied in fifteen paragraphs. To these we will give attention.

I. The initiatory contention is that the evidence for the State was not sufficient to support the verdict or, as correlative thereto, that appellant's demurrer should have been sustained at the close of the State's testimony. This may be given a short shrift. Whatever merit this demurrer may have possessed when made was dissipated by the subsequent introduction by the appellant of testimony in his defense on the merits, which constituted a complete waiver of the contention. [State v. McMurray, 284 S.W. 806; State v. Winkler, 273 S.W. 1040; State v. Mann, 217 S.W. 67.]

As to the demurrer at the close of all of the evidence. The sale of the liquor by the appellant, its purchase by...