State v. Howard
| Decision Date | 11 December 1929 |
| Docket Number | 29137 |
| Citation | 23 S.W.2d 16,324 Mo. 86 |
| Parties | The State v. Gus Howard, Appellant |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court; Hon. Allen W. Walker Special Judge.
Affirmed.
J H. Whitecotton, J. W. Wright, Jr., and Jas. E Boggs, for appellant.
(1) Every requirement of the statute was met by the appellant for the continuance, and as it showed diligence, materiality, etc., it was error to refuse the continuance applied for on account of the absence of a material witness. R. S. 1919, sec. 3997; State v. Anderson, 96 Mo. 250; State v. Maddox, 117 Mo. 667; State v. Hesserly, 182 Mo. 16. (2) Neither of the witnesses, Harker, Fleming, McAdams or Frazier, was competent to give opinions as to the contents of the bottles offered in evidence. The facts sought to be elicted from the witnesses could have been ascertained and made intelligible to the jury by a proper analysis of the contents of the bottles by a chemist and this being true, it was error to permit said witnesses to testify and give their opinion as to the contents of said bottles. State v. Farley, 144 Mo. 600. (3) There was no substantial and competent testimony as to the contents of the bottles and the instruction in the nature of a demurrer instructing the jury to find the defendant not guilty should have been given. (4) The court erred in refusing to reprimand the prosecuting attorney and to discharge the jury for his misconduct in calling for evidence as to a conviction of the defendant in a case in which the attorney well knew there was an appeal pending. The action of the prosecuting attorney was wilful and done for no other purpose than to try to prejudice the jury against the defendant. (5) Instruction 1 uses the language, "hootch, moonshine, or corn whiskey," when the information charges the defendant with the sale of "hootch, moonshine, corn whiskey." Said instruction is broader than the charge in the information, suggesting by the language used that "hootch, moonshine and corn whiskey" are each different commodities or substances. There was no proof tending to show that there was anything other than corn whiskey sold. (6) The court should have given an instruction defining the words "reasonable doubt" and this is especially true where the defendant requested an instruction defining what a reasonable doubt is, as was done in this case. The defendant, after a failure on the part of the court to give an instruction defining reasonable doubt, asked the court to give Instruction E defining reasonable doubt, which was refused, and after refusing said instruction the court failed to give any instruction on that question, which was error. State v. Clark, 147 Mo. 20; State v. Douglas, 167 S.W. 552; R. S. 1919, sec. 4025; State v. Owens, 79 Mo. 631; State v. Nerzinger, 220 Mo. 49. (7) The court permitted witnesses Fleming and McAdams to testify as to the "reputation for truth and veracity and general morality in the community in which the defendant lived among his neighbors and friends." This interrogation is in improper form and is not limited to the time of the act charged. No date or time being fixed in the question and examination, and the same was error. State v. Bugg, 292 S.W. 49.
Stratton Shartel, Attorney-General, Hibbard C. Whitehill, Special Assistant Attorney-General, for respondent; J. A. Walden, of counsel.
(1) An application for a continuance is addressed to the sound discretion of the trial court, with the exercise of which this court will not interfere, unless it clearly appears that such discretion is abused. State v. Van Valkenburgh, 285 S.W. 978; State v. Williams, 263 S.W. 198; State v. Martin, 317 Mo. 313; State v. Tracy, 294 Mo. 372; State v. Alred, 115 Mo. 473; State v. Thompson, 141 Mo. 415; State v. Blitz, 171 Mo. 537; State v. Murphy, 6 S.W.2d 877; State v. Taylor, 8 S.W.2d 34; State v. Salts, 263 Mo. 314. (2) The court did not err in permitting certain witnesses to testify concerning the contents of the bottle, and to the character of the liquor offered in evidence. Lay witnesses may testify to the intoxicating character of liquor or that it is moonshine, hootch or corn whiskey. State v. Marshall, 297 S.W. 67; State v. Brock, 280 S.W. 48; State v. Sappington, 2 S.W.2d 729; State v. Wheeler, 2 S.W.2d 779; State v. McGinnis, 7 S.W.2d 260; State v. Cook, 3 S.W.2d 365; State v. Knight, 300 S.W. 721; State v. Griffith, 311 Mo. 630; State v. Lando, 300 S.W. 767; State v. Black, 289 S.W. 804; State v. Pigg, 278 S.W. 1030. (3) Sufficient evidence was offered to make a case against defendant. State v. Sappington, 2 S.W.2d 729; State v. Schroetter, 297 S.W. 368; State v. Cook, 3 S.W.2d 365; State v. Fannin, 296 S.W. 84; State v. Brown, 285 S.W. 995; State v. French, 300 S.W. 793; State v. Tally, 300 S.W. 722; State v. Hedrick, 296 S.W. 152; State v. Hemphill, 287 S.W. 826; State v. Griffith, 311 Mo. 630; State v. Broaddus, 315 Mo. 1279. (4) The court did not err in overruling defendant's motion to discharge the jury on account of the action of the prosecuting attorney in undertaking to show that he had been convicted of an offense, which cause was pending on appeal. Defendant had testified to a prior conviction in the Circuit Court of Randolph County, of selling intoxicating liquor. He also testified to a prior conviction in the Circuit Court of Randolph County and that he entered plea of guilty to the offense of driving an automobile while intoxicated. The court sustained the objection and directed the jury to disregard the question. It was not reversible error to refuse to discharge the jury. Sec. 5439, R. S. 1919; State v. White, 299 Mo. 599; State v. Fannin, 296 S.W. 84; State v. Kelley, 284 S.W. 803; State v. Wilson, 242 S.W. 886. (5) Instructions numbered 1 and 3 are proper in form and substance, and it was not error to give them. State v. Tally, 300 S.W. 722; State v. Hedrick, 296 S.W. 152; State v. Hemphill, 287 S.W. 826; State v. Broaddus, 315 Mo. 1279; State v. Cook, 3 S.W.2d 365; State v. Griffith, 311 Mo. 630. The court did not err in refusing to give Instruction E requested by defendant defining reasonable doubt. Defendant requested five instructions, namely, A, B, C, D and E, of which the first four were given. Instruction C deals with the question of reasonable doubt, and said instruction, together with Instruction 2, given for the State, were more than sufficient to cover the situation. Having been given one instruction, with respect to reasonable doubt, the defendant was not entitled to another on the same subject, as the matter was fully covered by the instructions as given, which should be read and considered as a whole. State v. Nerzinger, 220 Mo. 49; State v. Hicks, 3 S.W.2d 24; State v. Liston, 2 S.W.2d 780; State v. Mitts, 289 S.W. 935; State v. Broyles, 295 S.W. 550; State v. Ross, 300 S.W. 785; State v. Cook, 3 S.W.2d 365; State v. Leeper, 78 Mo. 470. (7) It was not error to permit certain witnesses for the State to testify to the general reputation of defendant. When defendant took the stand in his own behalf, his general reputation became an issue touching his credibility as a witness. The record shows only a general objection made to the form of question asked said witnesses. The objection to the question did not call the court's attention to said question as not properly limited as to time, which could be the only reason for objection appellant could have to the question. Furthermore, by his own admissions, the defendant had, himself, testified to two prior convictions for violation of the liquor law. If any error was committed, it was, at most, harmless and non-prejudicial. Sec. 4036, R. S. 1919; State v. Cook, 3 S.W.2d 365; State v. Ayers, 285 S.W. 997; State v. Hastings, 285 S.W. 89; State v. Beckner, 194 Mo. 281; State v. Ross, 306 Mo. 499; State v. Baird, 288 Mo. 67.
Henwood, C. Davis and Cooley, CC., concur.
An information was filed in the Circuit Court of Randolph County, at Huntsville, by which the defendant was charged with the unlawful sale of "hootch, moonshine, corn whiskey." The venue was changed to the Circuit Court of Boone County, where he was convicted and sentenced to imprisonment in the penitentiary for three years. In due course, he appealed.
James Harker, the prosecuting witness, testified: He had lived in the city of Moberly, Missouri, and that vicinity for twelve years. At the time in question, he was employed by the mayor chief of police and city attorney of Moberly to procure evidence against "bootleggers," or evidence "of liquor violations." He had known the defendant ten years. In the month of December, 1925, the defendant was a bartender in the "old Turner & Ruffel saloon building" in the city of Moberly, in Randolph County. About 2:30 o'clock in the afternoon of December 23, 1925, he went to this place of business and asked the defendant if he could get "half a pint." The defendant said "all right." Then, in the "little room" at the rear of the counter, the defendant frilled a bottle with liquor from a jug and "handed it over" to him. He paid one dollar to the defendant for the bottle of liquor. About two o'clock in the afternoon of the next day, December 24, 1925, he went to the same place and purchased another bottle of the same kind of liquor from the defendant and paid one dollar to the defendant therefor. He identified these two bottles of liquor (State's Exhibits A & B) by the labels thereon. He labeled each bottle immediately after it ws purchased. He knew "various kinds of intoxicating liquors" from experience. He took a drink out of each of these bottles of liquor. He He could tell what it was by "the taste of...
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