State v. Dowell

• Decision Date: 31 December 1932
• Docket Number: No. 31826.,31826.
• Citation: 55 S.W.2d 975
• Parties: THE STATE v. ROSE DOWELL, Appellant.
• Court: Missouri Supreme Court

55 S.W.2d 975

THE STATE v. ROSE DOWELL, Appellant.

No. 31826.

Supreme Court of Missouri.

Division Two, December 31, 1932.

Appeal from Linn Circuit Court. — Hon. Paul Van Osdol, Judge.

AFFIRMED.

Stratton Shartel, Attorney-General and James A. Finch, Jr., Assistant Attorney-General, for respondent.

The evidence in the case is sufficient to support the verdict and judgment. The evidence was clearly sufficient to sustain the elements as charged in the information and by Section 4500, R.S. 1929. There was direct evidence of a sale by the defendant, as shown by the statement of facts. The money was paid to Miss Baker, shown to be an employee of the defendant, and handed by her to the defendant. Thereafter, defendant and her employee went to the kitchen and returned, the latter carrying the package containing the liquor. The transaction was clearly a sale. State v. Corp, 22 S.W. (2d) 774; State v. Brock, 280 S.W. 48. There was also ample evidence that the liquor sold was intoxicating and that it was moonshine. Under a long line of decisions witness Burton, as an officer of the law, sufficiently qualified as an expert to testify as to the character of the contents of the State's exhibits. His testimony that the bottles contained moonshine was sufficient to submit the case to the jury. State v. Nichols, 39 S.W. (2d) 777; State v. Cory, 22 S.W. (2d) 796; State v. Tally, 22 S.W. (2d) 789; State v. Balfour, 19 S.W. (2d) 756; State v. Kroeger, 13 S.W. (2d) 1071; State v. Cook, 3 S.W. (2d) 367; State v. Sappington, 2 S.W. (2d) 730; State v. Black, 289 S.W. 806. The weight of the testimony was for the jury. State v. Howard, 23 S.W. (2d) 14; State v. Cook, 3 S.W. (2d) 367; State v. Moore, 279 S.W. 134.

HENWOOD, J.

An information was filed in the Circuit Court of Linn County, at Brookfield, by which the defendant was charged in each of two counts with the unlawful sale of "one-half pint of moonshine," and the State elected to proceed to trial on the first count. The jury found her guilty and assessed her punishment at a fine of $500, and she appealed from the judgment and sentence entered in accordance with the verdict.

From the evidence adduced by the State we gather the following: About nine o'clock in the evening of August 2, 1930, Nick Johnson parked his automobile near the defendant's house in the city of Brookfield, in Linn County, went in the house and remained there for about a half hour. The defendant and Miss Ellen Baker, who was "working there," and "men" were sitting in the parlor when he arrived. While there he asked the defendant "if she had anything to drink." Miss Baker said, "Ain't you going to buy drinks?" He said, "Yes," and "handed her two dollars." Miss Baker "handed the money" to the defendant, and she and the defendant "went out in the kitchen and came back with the package" — two half-pint bottles of liquor wrapped in a newspaper. He and Miss Baker then left the house together, and Miss Baker carried "the package" to his automobile and "laid it in the seat." As they entered the automobile, they were confronted by two police officers, Simon Dolt and Ed Carroll, who arrested Johnson "for drunkenness" and found the two bottles of liquor in the seat of the automobile. The liquor was first turned over to the chief of police and later to the sheriff. Officer Dolt testified that the liquor in each of the bottles was "bootleg whiskey," and that it was "intoxicating," but he did not know what it was made of or how it was made. The chief of police, James A. Burton, tasted the liquor in each of the bottles while on the witness stand and testified that it was "moonshine." He further testified: He had had "quite a good deal" of experience with "moonshine," and had had occasion to taste liquor "such as moonshine," during his service of two years and a half as a police officer. He knew that "moonshine" had been made of "corn and rye and fruit and everything," but did not know what this liquor was made of. He was positive that it was "whiskey," but it did not "smell like bottled in bond." He could tell by its taste that it had alcohol in it, but could not tell its other ingredients. It smelled like alcohol, but was not "clear alcohol." He was not "good enough to tell" whether or not it was "alcohol diluted down." It could have been "alcohol fixed up some other way." Luther Crookshank, superintendent of schools at Brookfield, testified: He was "trained as a science teacher, including chemistry." He was able to make a test of alcoholic liquor and ascertain the nature of it. He analyzed the liquor in the two bottles at the request of the sheriff, and found that the liquor in one bottle had an alcoholic content of 50.25%, and that the liquor in the other bottle had an alcoholic content of 50.19%. The liquor in each bottle was "common raw whiskey colored with some sugary coloring matter and contained the ordinarily small percentage of the ingredient called fusil oil found in all unaged whiskey or alcoholic solutions." It could have been raw alcohol mixed with some other ingredient. He could not tell "the source of the alcohol." The two bottles of liquor were admitted in evidence and exhibited before the jury.

The evidence offered by the defendant in connection with her attempt to impeach the State's witness Johnson as to collateral matters tends to corroborate Johnson's testimony relating to such matters rather than to impeach him, and the defendant did not offer any evidence of any other character.

The defendant has filed no brief. In her motion for a new trial, she challenges the sufficiency of the evidence, and complains of the action of the trial court in admitting the testimony of the State's witnesses Crookshank and Burton, in giving the State's instructions 2A and 6, and in refusing to give her instructions A and B.

[1] I. The challenge of the sufficiency of the evidence cannot be sustained. It appears from the uncontradicted testimony of the State's witness Nick Johnson that, on or about the day alleged, he bought two half-pint bottles of liquor at the defendant's house in the city of Brookfield, in Linn County; that the defendant received the money paid by Johnson for the liquor; and that the defendant actively participated in the sale of the liquor. And while the liquor was not conclusively shown to be "moonshine" — the kind of liquor alleged to have been sold — the testimony of the State's witnesses Dolt, Crookshank and Burton tends to show that it was intoxicating, that it was manufactured illegally, and that it was "moonshine." The evidence as a whole made a case for the jury and is sufficient to support the verdict. [See State v. Howard, 324 Mo. 86, 23 S.W. (2d) 16, and cases cited, and State...