State v. Cox

• Decision Date: 16 December 1924
• Docket Number: No. 3653.,3653.
• Citation: 266 S.W. 734
• Parties: STATE v. COX.
• Court: Missouri Court of Appeals

266 S.W. 734

STATE v. COX.

No. 3653.

Springfield Court of Appeals. Missouri.

December 16, 1924.

Appeal from Circuit Court, Barry County; Chas. L. Henson, Judge.

Landon Cox was convicted of violating the prohibition law, and he appeals. Reversed.

Transferred from Supreme Court. 259 S. W. 1041.

D. H. Kemp, of Cassville, for appellant. Emory E. Smith, of Springfield, and Emory Medlin, of. Monett, for the State.

BRADLEY, J.

The prosecuting attorney of Barry county by information charged defendant with violating section 6588, as amended by Laws 1921, pp. 413, 414, our 1921 prohibition statute. Upon trial defendant was convicted, and his punishment fixed by the jury at a fine of $500. Motions for new trial and in arrest were duly filed. At the next term of the court after conviction the court reduced the fine to $100, and overruled the motions for a new trial and in arrest, and defendant appealed. The appeal was granted to the Supreme Court on the theory that a constitutional question was raised; but that court held that such question was not raised, and transferred the cause to this court. See State v. Cox (Mo. Sup.) 259 S. W. 1041.

Defendant in his motion for a new trial challenges the correctness of his conviction on 17 separate grounds. Some of these are formal and without merit. We will make disposition of those we deem of substance.

The information charged in a single count practically all the offenses described in said section 6588. Defendant moved to quash on the ground, among others, that the information was duplicitous, and the motion was overruled. The information is duplicitous, and is conceded to be in the brief filed by the Attorney General. State v. Christian, 253 Mo. 382, 161 S. W. 736; State v. Jablousky, 169 Mo. App. 238, 152 S. W. 390. There was no motion to elect, and no formal election, but the court in the instruction confined the charge to the possession of intoxicating liquor. Defendant's dwelling was searched under what purported to be a search warrant, and there were found therein about three quarts of moonshine whisky and about three pints of what is denominated as beer, and also as home brew, the alcoholic content of which brew or beer was stated to be from 4 to 7 per cent. The court instructed that if the jury found that the defendant possessed "intoxicating liquors then you will find the defendant guilty," etc. Defendant was entitled to know what charge he would be required to meet, and since there was no election the overruling of defendant's motion to quash was error. The verdict was: "We the jury find the defendant guilty as charged, and do assess his punishment," etc.

He was charged with several offenses, and there is nothing in the verdict or elsewhere to show definitely of what offense defendant was convicted. The verdict must be certain, positive, and free from ambiguity. It must convey on its face a definite and precise meaning, and must show what the jury intended. An obscurity which renders it at all doubtful will be fatal to it. State v. Pierce, 136 Mo. 34, loc. cit. 40, 37 S. W. 815; State v. Young (Mo. App.) 215 S. W. 499.

We do not deem it necessary to state the evidence at length. Defendant filed no motion to quash the...