State v. Hicks

• Citation: 33 S.W.2d 923
• Decision Date: 20 December 1930
• Docket Number: No. 30668.,30668.
• Parties: THE STATE v. FRED HICKS, Appellant.
• Court: United States State Supreme Court of Missouri

33 S.W.2d 923

THE STATE v. FRED HICKS, Appellant.

No. 30668.

Supreme Court of Missouri, Division 2.

December 20, 1930.

Appeal from St. Francois Circuit Court. — Hon. Frank Kelly, Judge.

REVERSED AND REMANDED.

Benj. H. Marbury and W.A. Brookshire for appellant.

(1) The court erred in overruling the verified petition and application of appellant for a change of venue from St. Francois County. Laws 1921, p. 206; State v. Smith, 281 S.W. 38; State v. Bradford, 285 S.W. 499. (2) The court erred in compelling appellant to name the person from whom he purchased the whiskey when he had claimed his constitutional right to refuse to do so, and for the further reason that he (as defendant) had not been asked this question on direct examination, and that it was immaterial as to where he got the whiskey. State v. Haid, 30 S.W. 467; State v. Decker, 14 S.W. (2d) 619. (3) The court erred in refusing Instructions D and G, offered in behalf of appellant, for the reason that they presented to the jury the defense of entrapment, which was an issuable fact. McFadden, Prohibition, Chap. 21, pp. 435 to 451; In Ritter v. United States (C.C.A.), 293 Fed. 189; State v. Decker, 14 S.W. (2d) 619; Butts v. United States (C.C.A.), 273 Fed. 35; Butts v. United States, 18 A.L.R. 146. (4) The defense of entrapment was presented to the court by Instructions D and G on the part of appellant (defendant); if these instructions were, for any reason, held imperfect, it was the duty of the court to prepare and give a proper instruction presenting the defense of entrapment, and, failing and refusing so to do, is reversible error. Sec. 4025, R.S. 1919; State v. Conway, 241 Mo. 290; State v. Broaddus, 289 S.W. 794; State v. Starr, 244 Mo. 175.

Stratton Shorted, Attorney-General, and G.C. Weatherby, Assistant Attorney-General, for respondent.

(1) The verdict of the jury is supported by the evidence and by the law as applied to the evidence. There was direct evidence that defendant delivered a pint of moonshine whiskey to witness Hogg for which he accepted the sum of $1.50. This proves a sale. The question of his interest in the transaction, that is, whether he was acting for himself as the seller, or as an employee of the seller, were questions, which under the evidence, could only be settled by the jury. State v. Cunningham, 154 Mo. 161; State v. Pollard, 174 Mo. 607; State v. McGuire, 193 Mo. 215; State v. Fields, 234 Mo. 615. For cases involving the purchase of liquor for others, see: State v. Morton, 42 Mo. App. 64; State v. Field, 139 Mo. App. 20; State v. McFadden, 151 Mo. App. 479; State v. Elmore, 195 Mo. App. 15. (2) For the reasons already assigned the court did not err in refusing the instruction in the nature of a demurrer requested at the close of the State's evidence and again at the close of all the evidence. See cases cited under Point 1. (3) The court did not err in denying defendant's application for change of venue. Neither the application nor the supporting affidavits set forth any facts from which it could be determined whether the alleged prejudice of the inhabitants of the county in fact existed. This is necessary. A statement that the inhabitants are prejudiced is but the statement of a conclusion. Sec. 3973, Laws 1921, p. 206; State v. Hancock, 7 S.W. (2d) 276; State v. Stough, 2 S.W. (2d) 767; State v. Bradford, 314 Mo. 684. (4) The court did not err in requiring defendant to disclose the name of the person from whom he obtained the liquor in question. The defense as announced by defense counsel was that defendant was acting alone for the State's witnesses in procuring the liquor; that he had no interest in the sale either for himself or as agent or employee of the seller. To test the truth or accuracy of this position the State was entitled to all the facts bearing upon the source of the liquor supplied by defendant. (5) The court did not err in refusing Instructions D and G requested by defendant. These instructions undertook to submit to the jury the question of entrapment. They were properly refused under the evidence. It has been held that inasmuch as intent is not a necessary element of the offense the defense of entrapment has no application to cases involving the sale of intoxicating liquor. State v. Broaddus, 315 Mo. 1279; State v. Seidler, 267 S.W. 424. The evidence must warrant the submission of that question before the defendant may properly complain of its refusal in any case. There is nothing in the State's testimony to show entrapment, even remotely. State v. Sheeler, 7 S.W. (2d) 340; State v. Decker, 14 S.W. (2d) 617; State v. Chappell, 179 Mo. 324.

DAVIS, C.

In an information filed in the Circuit Court of St. Francois County, defendant was charged, on April 26, 1929, with the sale of moonshine whiskey. The verdict of the jury found defendant guilty as charged in the information, and assessed his punishment at two years' imprisonment in the penitentiary. Judgment was entered on the verdict, and defendant appealed.

The evidence adduced in behalf of the State warrants the finding that Roy J. Dugan and M.L. Hogg were United States Prohibition agents, stationed at St. Louis. On April 25, 1929, they were guests of the Ada Hotel in Farmington. On that day they became acquainted with defendant Hicks, meeting him at the hotel. Later that day they drove to the Kennedy place, and while said agents remained in the car, they had defendant procure liquor for them, furnishing him money with which to get it. They tried at two or three places to get whiskey before obtaining it at the Kennedy place. The agents and defendant drank of the whiskey on obtaining it. On returning to the hotel, defendant accompanied the agents to their room, and was given by them a drink of whiskey. The next morning, on April 26, 1929, between seven and seven-thirty A.M., Dugan met defendant in front of the hotel. Dugan testified: "I asked Mr. Hicks if he could get me a pint of whiskey. He said, Yes. I told him to bring it up to our room at the Ada Hotel, Room 17, and he got in his automobile and drove down the street. In about twenty minutes, he returned. In the meantime, I had gone to my room with my partner, Hogg, and in about twenty minutes, Mr. Hicks came up and knocked on the door, and I asked him if he had the whiskey and he said, Yes, and he took a pint bottle out of his pocket and handed it to Agent Hogg, and Agent Hogg said, `How much?' and he said `Dollar and a half,' and Agent Hogg paid him a dollar and a half." The contents of the bottle delivered to Hogg on the morning of April 26th, both Hogg and Dugan testified, was moonshine. Dugan went to defendant and asked him if he could get him a pint. On April 26th, before asking defendant to get him whiskey, Dugan first asked him if he had any liquor, and defendant said that he did not. Hogg said that he told Dugan to have defendant bring up a pint of whiskey.

The defendant's evidence tends to show, by the employees of the Ada Hotel, that both agents were drunk when they were shown to their rooms and that they, with difficulty, climbed the stairs. They were drunk at the dining table and were drinking the whole time they were at the hotel.

Defendant testified that he became acquainted with Hogg and Dugan on the morning of April 25th, at the Ada Hotel. They approached defendant, entered into a conversation with him, stating that their car was stolen and asking him how to get in touch with the sheriff. Hogg was advised that the sheriff's office was in the court house, and he left and returned in twenty minutes, saying that he had gotten in touch with the sheriff. Hogg then seated himself by defendant and Dugan appeared. Hogg said to Dugan, "Did you take that pint of whiskey out of the car last night when you parked it?" Dugan replied, "No, I didn't take it out; I left it in the car so we could have a good drink apiece this morning. You know we were both drunk last night and we'll have to have a drink this morning to straighten up on." Hogg said, "Wouldn't it be awful if the sheriff would find that car and find that pint of liquor in the car?" They then stated that they were both needing a drink and they asked if a man could get a drink in town. Later on that day liquor was obtained, Dugan paying for it, and they drank it as they returned to town and at the hotel.

On the evening of April 25th, Hogg invited defendant to his room, and he drank with them. Hogg was apparently sober, but Dugan was half drunk. On the next morning, April 26th, defendant saw Dugan in front of the hotel. Dugan beckoned him to approach. Defendant testified as follows:

"Q. State to the court and jury just what the conversation was, Mr. Hicks. A. I went over to where he was and he said, `My friend, I am nearly dead this morning; my partner is sick, too, he is in bed,' and he said, `We would like to have a pint of liquor this morning. If you can get it for us, it would be the biggest friendship we ever had done to us.'

"Q. Tell what else was said or done. A. I said, `Well, I haven't got any.' He said, `Can't you get out and get us a pint?'

"Q. Go on. Tell what else, if anything, was said. A. I said, `Well, I might do that.' He said, `If you will, it will be the biggest accommodation we ever had done. My partner says he can't get up until he gets a drink.' He said, `I would give you the money to buy it with now but I haven't got the change; if you will bring it to our room, my partner will give you the change for it.'"

He testified that they did not tell him what to spend for the pint, but that he obtained the liquor for them, and took it to their room and delivered it to Hogg, Hogg giving him a dollar and a half. He had no liquor when Dugan approached him, nor did he (defendant) mention liquor to Dugan; that Dugan first mentioned it. In obtaining the liquor, he was acting for Dugan and that he would not have bought it for Dugan if Dugan had not requested him to get it for him. He had no interest in the...