State v. Frazier

• Decision Date: 06 March 1925
• Citation: 269 S.W. 410,217 Mo.App. 524
• Parties: STATE OF MISSOURI, Respondent, v. JAMES FRAZIER, Appellant.
• Court: Missouri Court of Appeals

269 S.W. 410

217 Mo.App. 524

STATE OF MISSOURI, Respondent, v. JAMES FRAZIER, Appellant.

Court of Appeals of Missouri, Springfield

March 6, 1925

Appeal from Circuit Court of Carter County.--Hon E. P. Dorris Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Yount & Kearby, of Poplar Bluff, for appellant.

(1) The verdict is insufficient, and no valid judgment can be rendered upon it, because it is impossible to tell from the verdict of which charge in the first count of the information the defendant was convicted. 1 Bishop Crim. Proc. (3 Ed.) sec. 1005; State v. Harmon, 106 Mo. 551; State v. Pierce, 136 Mo. 35; State v. Palmberg, 199 Mo. 233; State v. Pruitt, 202 Mo. 49; City of Mexico v. Gray, 203 Mo.App. 553; State v Standley, 232 Mo. 23; State v. Schenk, 238 Mo 449; State v. Washington, 242 Mo. 401; State v. Young, 215 S.W. 499. (2) In directing the jury that they should return a verdict of guilty if they found that the defendant had in his possession a certain doubler, worm, fermenting tub, mash tub or still or any of said articles, the court erred. The defendant was entitled to a unanimous verdict of the jury upon the issue of his guilt or innocence of the particular offense for which he was on trial. Under this instruction and the general verdict returned, some of the jurors may have believed the testimony in support of the charge as to the possession of one of the articles mentioned and disbelieved the testimony as to the other, while the remaining members of the jury may have found and believed conversely. See cases cited, supra.

No brief for respondent.

COX, P. J. Bradley, J., concurs; Bailey, J., not sitting.

OPINION

COX, P. J.--

Defendant was charged by information with violating the prohibition law. The information was in three counts: The first count charged defendant with having in his possession "a certain doubler, worm, fermenting tub, mash tub and still." The second count charged the manufacture of intoxicating liquor. Defendant was acquitted on the second and third counts and convicted on the first count. The appeal is from that conviction.

The error complained of relates to the instruction for the State which told the jury that if they should find that defendant had in his possession "a certain doubler, worm, fermenting tub, mash tub or still which said doubler, worm, fermenting tub, mash tub or still or any of said articles were then and there fit to be used and capable of being used in the production of intoxicating liquor," they would convict. The verdict was a general verdict of guilty as charged in the first count.

The point made against the instruction is that it authorizes a conviction on a finding that defendant had in his possession either of the articles named and since the verdict was a general one and did not specify what articles the jury believed the defendant had in his possession, it could not be known whether the jury all agreed in their finding, as some may have believed he had one article in his possession and others disbelieved that, but believed that he had some other article named in his possession. In such a case if the question of possession of all the articles is submitted to the jury and they are required to find that defendant had possession of all in order to convict, it is good. If the question of possession of only one article is submitted and the jury is required to find possession of that particular article in order to convict, it is good; but if possession of more than one article is submitted and a conviction is authorized upon a finding of possession of either all or one or more of the articles, then the jury should be instructed that in case they should find defendant guilty, they should specify in the verdict the articles which they find from the evidence defendant had in his possession. [State v. Washington, 242 Mo. 401, 146 S.W. 1164; State v. Geist, 196 Mo.App. 393, 195 S.W. 1050; 199 S.W. 1041; State v. Gray, 203 Mo.App. 547, 553.]

In this case there was no evidence that defendant had a doubler or a still in his possession. There was evidence that he had possession of grape mash. This mash was in an ordinary rain barrel and not in a mash tub as that term is used in the statute. [State v. Hyde, 248...