State v. Hedrick
| Decision Date | 23 June 1927 |
| Docket Number | 27480 |
| Citation | 296 S.W. 152 |
| Parties | STATE v. HEDRICK |
| Court | Missouri Supreme Court |
C. I Bennington and H. K. Bente, both of Sedalia, for appellant.
North T. Gentry, Atty. Gen., and H. O. Harrawood, Sp. Asst. Atty Gen., for the State.
In January, 1925, defendant was indicted in Pettis county for selling corn whisky on or about -- day of February, 1924. The jury returned a verdict of guilty, and fixed defendant's punishment at 90 days in the county jail, beginning April 25 1925, defendant appealing from the judgment entered thereon.
The evidence on the part of the state tends to show the following: One Lester Stansberry testified that he was 26 years of age, a married man, had been in the late war, and was working at the market house; that he knew defendant, and during 1924 he purchased a half pint of corn whisky from defendant on Main street in Sedalia, paying him $ 1 therefor. On cross-examination it was shown that Stansberry had theretofore been convicted in the circuit court. It was later shown that Stansberry's reputation for truth and veracity was bad. While the witness stated at one time he could not tell whether it was corn or rye whisky, he later stated that he drank the half pint, and that it was corn whisky.
Defendant testified that he was 20 years of age, was a chicken feeder, having worked for ten years before the trial at that occupation, seven years with Swift & Co., and three years with Missouri Egg & Poultry Company; that he did not sell corn whisky to Stansberry or any one else in the year 1924, or at any other time. On cross-examination the following questions were asked and answers were given:
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J. L. Braden, for defendant, testified that he met Stansberry on Main street one day, saying to him, 'Lester, what do you want to turn those boys in for,' that is, Robbins and defendant, and Stansberry replied, 'They done me dirty.' In rebuttal, over the objection and exception of defendant that he admitted he had the bottles, the state was allowed to show by Deputy Sheriff Brent that he arrested defendant, and that at the time he arrested him defendant had three bottles which the witness smelled, and from the odor they contained corn whisky, but that the bottles were empty with nothing in them, just a few drops. The state's evidence further showed in rebuttal that the state was allowed to show that defendant's reputation in the community was bad.
I. Defendant asserts that the trial court erred because it failed to instruct the jury to acquit defendant. The state's evidence tended to show that defendant, ten or eleven months previous to the indictment, sold the prosecuting witness a half pint of corn whisky, charging therefor $ 1. It was then a question determinable by the jury as to whether the state's evidence showed the defendant guilty beyond a reasonable doubt. Where the state's evidence is sufficient to render the case submissible to the jury, it is without the court's province to declare defendant not guilty as a matter of law.
II. The indictment is challenged. It charges that on or about the -- day of February, 1924, in the county of Pettis in the state of Missouri, defendant did then and there unlawfully and feloniously sell corn whisky. Defendant moved to quash the indictment. We think the following complaints only merit discussion:
(a) It is averred that the indictment does not follow the language of the statute. We consider it unnecessary to set forth section 21, page 242, Laws 1923, on which the indictment is based, for a reading of the statute will unqualifiedly show that the indictment follows it.
(b) Error is charged because the allegation that it was for beverage purposes was omitted. The statute interdicts the sale of corn whisky except that lawfully sold. The indictment avers that defendant unlawfully and feloniously sold corn whisky. As all material averments of a pleading are presumed to be true upon attack, the court is permitted to assume that defendant sold corn whisky, and, as it is common knowledge that corn whisky is fit for beverage purposes, we judicially notice that it was so fit.
(c) Defendant asserts that the indictment is vague. We assume that the charge of vagueness refers to the omission of a sale to a particular person. We held in State v. Martin, 292 S.W. 39, citing supporting cases, that it is not error for an information or indictment to fail to designate the person to whom the sale of intoxicating liquor was made.
III. It is maintained that the court erred in permitting witness Brent to testify as to...
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