State v. Draughn

• Decision Date: 03 January 1910
• Parties: STATE v. DRAUGHN.
• Court: Missouri Court of Appeals

124 S.W. 20

140 Mo. App. 263

STATE v. DRAUGHN.

Springfield Court of Appeals. Missouri.

January 3, 1910.

1. CRIMINAL LAW (§ 549) — EVIDENCE — WEIGHT AND SUFFICIENCY.

Courts and juries are not limited, in searching for the truth, to the mere words of the witness.

2. CRIMINAL LAW (§ 560) — EVIDENCE — WEIGHT AND SUFFICIENCY.

It is not necessary to sustain a conviction that the evidence should show the guilt of defendant beyond the possibility of a doubt, but only beyond a reasonable doubt.

3. WITNESSES (§ 246) — EXAMINATION OF WITNESS BY COURT.

A trial judge has the right to examine a witness the same as attorneys.

4. WITNESSES (§ 244) — EXAMINATION — LEADING QUESTIONS.

Where a witness is shown to be unfriendly to the prosecution, it is proper to allow the prosecuting attorney to ask him leading questions.

5. WITNESSES (§ 255) — EXAMINATION — REFRESHING MEMORY.

The rule that the state cannot impeach its own witness by proving previous statements contradictory to his testimony does not prevent the state from calling the attention of an unwilling or forgetful witness to his testimony before the grand jury for the purpose of refreshing his memory, though such former testimony is different from his testimony in court.

6. INTOXICATING LIQUORS (§ 236) — UNLAWFUL SALES — SUFFICIENCY OF EVIDENCE.

Evidence held to sustain a conviction for selling liquors in violation of the local option law.

Appeal from Circuit Court, Dade County; B. G. Thurman, Judge.

Jesse Draughn was convicted of selling intoxicating liquors unlawfully, and appeals. Affirmed.

Neale & Newman, for appellant. Edwin Frieze and Howard Ragsdale, for the State.

GRAY, J.

This is an appeal by the defendant from the judgment of the Dade county circuit court, assessing a fine of $300 against him, after trial by jury, on an indictment charging him with selling intoxicating liquors, in violation of the local option law.

There is only one question in the case, and that is: Was the evidence sufficient to support the verdict?

The state relied for a conviction, as to what was sold, on one J. L. Berry. This witness testified on direct examination: "Q. Do you know Mr. Draughn, the defendant in this case? A. Yes, sir. Q. What business was he engaged in last fall? A. Well, he was in the drug business, I suppose, last fall. Q. Where was he in business? A. South Greenfield. Q. Were you at his place of business there? A. Yes, sir. Q. Did you buy anything from Mr. Draughn? A. Yes, sir. Q. What did you get from him? A. Well I suppose it was — I got a half pint of stuff. I don't know what it was — no, a pint. I suppose it was whisky. Q. You called for whisky when you bought that, did you not? A. Well, sir, I disremember whether I called for whisky, or whether I just went in and asked for a pint. Q. What makes you suppose it was whisky? A. Well, that was what the fellow asked me to get for him, was whisky. Q. Did you taste it? A. No, sir. Q. What color was it? A. I disremember whether it was wrapped up. Q. Don't you know what you called for when you went in the store? A. No, sir; I don't recollect just exactly how I called for it. I might have called for a pint, or I might have called for a pint of whisky. I just disremember what I did do. Q. You thought you was getting whisky when you went in there and got that? A. Yes, sir. Q. Who was in the front room when you came out. Mr. Berry? A. Well, sir, I believe Mr. Sexton was in there. Mr. Sexton bought a comb there that day." After these questions and answers, followed a long list of questions by the prosecuting attorney and the court. These questions were asked and answered over the objection of the defendant's counsel. The witness further testified that he paid 50 cents for it, but whether he bought it of Mr. Draughn or some one else he did not remember, as it was about the time Draughn was selling out. On cross-examination the witness testified, in speaking of the sale: "I had been to Lockwood, and I came on back there waiting for a train, and I went down there to see Mr. Jones, and he asked me to go up there and get this stuff for him, but I don't recollect whether he said, `Go up there and get me a pint,' or a `pint of whisky.' I disremember what he said. I don't remember whether I called for a pint, or a pint of whisky, and I disremember whether it was wrapped or not."

The witness Sexton was placed on the stand, and he testified that he bought a comb of defendant that day, and that Mr. Berry, he believed, was on the premises at that time, and standing there when he bought the comb.

This is substantially the testimony for the state, except it was admitted that local option was in force in the county at the time of the sale. The defendant was the only witness offered in his behalf, and the following is his examination in chief: "Q. Mr. Draughn, are you guilty of this charge? A. No, sir. Q. That is all." The state attempted to cross-examine him, but his counsel objected, so that the cross-examination consisted of the following: "Q. You have told the jury all you are going to tell them about this case? A. Yes, sir; I ain't got nothing more to say; not guilty is all."

The testimony, narrowed down, proves the following facts: That a man by the name of Jones said to Mr. Berry: "Go up to the drug store and get me a pint." The train was about to move, and the witness...