State v. French

• Decision Date: 12 December 1927
• Docket Number: 28312
• Citation: 300 S.W. 793,318 Mo. 619
• Parties: The State v. Tom French, Appellant
• Court: Missouri Supreme Court

300 S.W. 793

318 Mo. 619

The State v. Tom French, Appellant

No. 28312

Supreme Court of Missouri

December 12, 1927

Appeal from Wayne Circuit Court; Hon. E. M. Dearing, Judge.

Affirmed.

North T. Gentry, Attorney-General, and H. O Harrawood, Special Assistant Attorney-General, for respondent.

(1) There was direct and positive evidence of the sale of hootch moonshine and corn whiskey by defendant. Where there is substantial evidence of defendant's guilt, this court will not weigh the evidence nor disturb the verdict. State v. Yandell, 201 Mo. 662; State v Long, 257 Mo. 208; State v. Swarens, 241 S.W. 939; State v. Jackson, 283 Mo. 24; State v. Henke, 285 S.W. 392; State v. Sissom, 278 S.W. 704. (2) The verdict is within the statute and is not cruel, unusual and oppressive. Sec. 21, Laws 1923, p. 242; State v. Alexander, 285 S.W. 984; State v. Brokaw, 281 S.W. 105; Workman v. Turner, 283 S.W. 61. (3) The statute fixing the punishment is not in violation of the Constitution. State v. Alexander, supra. Where this is true it is held no matter how severe the punishment may appear to be in a particular case, it is not to be considered excessive if within the limits of the statute. State v. Van Wye, 136 Mo. 227; State v. Helpley, 279 S.W. 701; State v. Renfro, 279 S.W. 702. Furthermore, if defendant wished to raise the question of the constitutionality of this statute he should have done so in the regular way, by raising the point at the earliest possible opportunity and then keeping it alive. This he has not done, hence, it is not before this court. (4) The verdict is not the result of passion and prejudice. No affidavits or other evidence are offered, nor is there anything in the record to support this contention. State v. Gonce, 87 Mo. 630; State v. Howell, 117 Mo. 342.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

An information was filed in the Circuit Court of Wayne County by which appellant was charged with the unlawful sale of one quart of "hootch," "moonshine" and "corn whiskey." The jury found him guilty and assessed his punishment at imprisonment in the penitentiary for three years. Following judgment and sentence on the verdict, he appealed.

The State's case was made on the testimony of five boys or young men, who lived in the town of Greenville, in Wayne County. It was Hallowe'en in Greenville, being the evening of October 31, 1925, and these adventurous merry-makers felt sure that some liquor would add to the charms of the occasion. Apparently, they thought of appellant as being associated with the liquor business. Wilford Alman and Cortez Hedge saw appellant at Latham's garage and arranged to get a quart of whiskey from him. He told them to meet him "down by the bridge." At this time, their chums, Freman Martin, Leslie Pigg and Jess Pigg, were waiting across the street. Shortly thereafter, when all of these boys had gathered "down by the bridge," a car passed and someone in the car said to them, "Go down to the Mercantile." They knew it was appellant who said this by his voice, though it was then "about nine-thirty" and dark. Alman and Hedge followed the car and met appellant at the "back end" of the Mercantile Store. There, appellant delivered to them a quart fruit jar filled with liquor, which he poured from a gallon jug, and Alman handed him $ 2.50 in exchange for the same. All of these boys contributed to the liquor fund and all of them met at the "Flour Mill" and shared in the consumption of it. Some of them indulged more freely than others. Hedge drank too much and went home for relief. The others boasted of less intoxicating effects and were able to attend "the dance" and other entertainments. Hedge was sixteen years of age and Martin was twenty-one. The ages of Alman and the Pigg brothers do not appear, but all were referred to as boys at the trial, and it does appear that Alman and Hedge were attending school in Greenville. Hedge said he had never tasted whiskey before, but this liquor "had a kind of a strong burning taste to it," and that it made him "pretty drunk." Alman and Martin both testified it was "moonshine," and that it tasted like whiskey.

Appellant took the stand and admitted that he saw these boys that evening and that they asked him if he had any whiskey, but denied that they got any whiskey from him. He said he passed by the Mercantile Store about four o'clock in the afternoon, but was not around there that evening. On cross-examination, he admitted that he had been previously convicted for the unlawful possession of whiskey in Wayne County and spent "quite awhile" in jail for that offense. Harry Schrum and Walter Stephens were the only additional witnesses in appellant's behalf. They both testified that they were with appellant from about four o'clock in the afternoon until about ten or eleven o'clock that night, but, strange to say, they were not questioned by counsel for either side of the case as to the alleged whiskey transaction between appellant and the boys. Schrum said he was with appellant "practically all the time." Stephens said appellant "might have been away a few minutes." Both said that they were with appellant at Latham's garage that night, but nothing was said by either of them about the Mercantile Store.

In rebuttal for the State, Leslie Pigg and Jess Pigg testified that neither Schrum nor Stephens was with appellant when they saw him at the Mercantile Store that night.

No brief has been filed for appellant, but we have carefully examined the assignments of error in his motion for a new trial.

I. The complaints directed against the sufficiency of the evidence cannot be seriously considered. The testimony of Wilford Alman and Cortez Hedge, as to the sale of the "moonshine" to them by appellant, was direct and positive. They were strongly corroborated by Freman Martin Leslie Pigg and Jess Pigg, who were "down at the bridge" when appellant drove by in a car and said, "Go down to the Mercantile," and who were near by when appellant turned over the fruit jar of liquor to Alman and Hedge and took the $ 2.50 in payment for it. Moreover, appellant's own admission, that these boys came to him and asked for whiskey on the evening in question, further corroborated them, in part. The...