State v. Fannin
| Decision Date | 03 June 1927 |
| Docket Number | 27802 |
| Citation | 296 S.W. 84 |
| Parties | STATE v. FANNIN |
| Court | Missouri Supreme Court |
O. O Mettle and J. C. Leopard, both of Gallatin, L. W. Reed, of Breckenridge, and Thos. H. Hicklin, of Chillicothe, for appellant.
Northe T. Gentry, Atty. Gen., and H. O. Harrawood, Asst. Atty. Gen for the State.
Appellant was convicted of the felony of selling hooch, moonshine, or corn whisky. The jury failed to assess the punishment, and the trial judge fixed the same at imprisonment in the state penitentiary for five years. Sentence was pronounced, and an appeal was granted to this court.
Ray Trotter testified that he purchased a half pint of 'hooch, moonshine, and corn whisky' from appellant at Gallatin, in Daviess county, on or about December 1, 1925. Such was the testimony finally given by said witness after he had said that he did not know whether or not appellant was the man who sold him the whisky. He was never uncertain about buying moonshine whisky from some one at that time and place. It is impossible to read the record without feeling that the witness was doing his best to protect the appellant.
The prosecuting attorney was permitted to cross-examine Trotter on the ground that he was an unwilling witness. The fact of such unwillingness seems clear from the record. During the noon recess on the day of the trial, it seems that young Trotter talked to the prosecuting attorney and his brother and the superintendent of schools. He was advised to tell the truth. The superintendent of schools said something to him about a prosecution for perjury if he did not tell the truth. Before Trotter was recalled after the noon recess, the prosecuting attorney was sworn as a witness and identified the proceedings of the grand jury which returned the indictment against appellant. When Trotter resumed the witness stand he was shown his signature to the notes taken from his testimony before the grand jury. Then it was that Trotter testified that appellant was the man who had sold him the whisky. His explanation of his evasions and false testimony concerning his knowledge of the identity of the man who sold him the whisky was that appellant had asked him not to say that he bought the whisky from him. Appellant did not testify.
In his motion for new trial, appellant contended that the evidence was not sufficient to support the verdict. In his brief here, he admits that the testimony of witness Trotter, as finally given, 'made this a very close case for the jury.' We think the jury had the right to pass upon Trotter's testimony -- all of it. If the jury believed he was telling the truth when he was recalled and finally testified that appellant sold him the whisky, then certainly a case was made against appellant. The jury had all the facts and surrounding circumstances before it. It weighed Trotter's afternoon testimony with full knowledge of the contradictory character of his forenoon testimony. The witness was only 18 or 19 years old. The jury doubtless took that fact into consideration also. It evidently believed Trotter told the truth when he was recalled in the afternoon. The fact that he testified against appellant reluctantly, but finally testified against him positively, may have induced belief in the truth of his final story. Certainly if the jury believed Trotter's explanation of his forenoon testimony, it had the right to believe his afternoon testimony.
In State v. Kelley, 191 Mo. loc. cit. 689, 690, 90 S.W. 834, 837, this court held the following instruction to be a sound one:
'Although you may believe from the evidence in this case that the witness Blanche Long made statements under oath at times previous to her examination in this case, at variance with and contradictory to her testimony in this case, yet you may consider the circumstances under which she made such prior statements, the age of the witness at the time, her condition in life and her environments, together with her relation to the parties interested in the case, and the whole in connection with all the other evidence in the case in determining the truth as to the question at issue.'
Judge Gantt admitted that the instruction was a comment on the testimony of a particular witness, but held that it was not prejudicial error under the circumstances of the case because appellant had invited the error. It might...
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