State v. Keltner.

• Decision Date: 08 January 1926
• Docket Number: No. 3881.,3881.
• Citation: 278 S.W. 825
• Parties: STATE v. KELTNER.
• Court: Missouri Court of Appeals

278 S.W. 825

STATE v. KELTNER.

No. 3881.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Tom Keltner was convicted of possessing intoxicating liquor, and he appeals. Reversed, and defendant discharged.

G. Purd Hays, of Ozark, for appellant.

BAILEY, J.

Defendant appeals from a conviction of possessing intoxicating liquor under the provisions of section 6588, R. S. Mo. 1919, as amended by the laws of Missouri of 1921, page 414. His fine was assessed at $100.

The first point raised by appellant is that the information was insufficient because it failed to charge defendant with possessing intoxicating liquor for beverage purposes. Since the amendment of 1921, above referred to, it is not necessary to charge that defendant was in possession of liquor for beverage purposes. The information follows the language of the statute, which is all that is required. State v. Smith et al. (Mo. App.) 261 S. W. 696.

It is also urged that the evidence is insufficient to sustain a conviction. The offense is alleged to have taken place on the 23d day of April, 1923. There were two trials of this case. At the first trial the jury disagreed and was discharged. At the second trial John Wasson testified, for the state, that on the 23d day of April, 1923, in the town of Nixa, he was standing on the street corner with Art Young and Lon Walker, and, saw defendant start across the street from the opposite side; that he acted like he was drunk, and he gave it as his opinion that defendant was drunk; that about middle ways' of the street defendant dropped a bottle, looked around, picked up the bottle, put it in the bosom of his overalls, and went on; that the bottle was a quart bottle, to the best of his knowledge, and was about half full of a liquid, white in color. The witness did not examine the contents of the bottle, and did not testify it contained intoxicating liquor.

Art Young testified to about the same state of facts, and, in addition, that when defendant dropped the bottle he said, "God damn, you have the law, now use it;" that some days afterwards defendant came to him and said, "I was drunk, and I am not going to tell a lie about it; I am going to plead guilty."

Lon Walker gave evidence practically the same as the witnesses Wasson and Young. He also swore that about two weeks after the time of the alleged offense defendant came to his place and wanted the witness to go with him to Ozark; that he wanted to plead guilty to being drunk. The prosecuting attorney then examined the witness as follows:

"Q. Did he afterwards come to you and want you to come to Ozark with him?

"By Mr. Hays: We object to that.

"By the Court: The objection is overruled. (The defendant excepts to the ruling of the court.)

"Q. Yes, sir, he did; he come to my place, it must have been a week or ten days, maybe two weeks after that. He come to my place and wanted me to come and see you; he said he. wanted me to come here with him to Ozark and plead guilty.

"Q. Plead guilty to what? A. To being drunk. "Q. Did he say anything about pleading guilty to possessing any whisky?

"By Mr. Hays: The defendant objects to him suggesting and leading the witness.

"By the Court: Overruled.

"Q. What did you say he said? A. He said, `Lon, I want you to go to Ozark with me; I am going to plead guilty.' He said he wanted me or Mr. Young or somebody to go with him.

"Q. What did he say to you with reference to this other?

"By Mr. Hays: We object, as there is not any other charge.

"By the Court: You can tell the conversation with him. (The defendant excepts to the ruling of the court.) A. He said he wanted to go up there and plead guilty and get out of this; they could bring a federal charge against him, he said...