State v. Kernek
| Decision Date | 24 May 1928 |
| Docket Number | No. 4272.,4272. |
| Parties | STATE v. KERNEK. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.
Clarence Kernek was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.
Defendant was convicted of unlawfully possessing intoxicating liquor and appealed. We are not favored with briefs from either side. In the motion for a new trial defendant assigned error (1) on the sufficiency of the information; (2) on the sufficiency of the evidence; (3) on the admission of evidence; and (4) on the argument of the prosecuting attorney. In the state of the record we do not consider it necessary to say more of the information than that it properly charged the unlawful possession of intoxicating liquor, and specified wine as one of the intoxicating liquors alleged to have been unlawfully possessed.
Several witnesses were used by the state, but many of them gave no evidence of a substantial nature tending to support the charge upon which defendant was convicted. But we cannot say that there was no evidence of substance tending to establish that defendant possessed intoxicating liquor. Defendant owned and operated the Green Tree Roadhouse a short distance west of Poplar Bluff in Butler county. According to the evidence of defendant he made his home at the roadhouse. There are ten acres in the tract, eight of which are cleared. Defendant, after purchasing the place, made some repairs and on occasions gave dances. He also set up a stand in the house where he sold soft drinks, cigars, cigarettes and tobaccos. On the night of January 1, 1927, while a dance was in progress, defendant's house was raided by officers acting under a search warrant, but the warrant was held to be bad and the evidence of the officers as to what they obtained under it was excluded. But, independent of the evidence obtained by the search, the state introduced evidence tending to support the charge of unlawfully possessing intoxicating liquor.
Hazel York, a witness for the state, testified that about a week prior to January 1, 1927, she was at defendant's roadhouse, and that she drank a glass of wine; that she called for wine and that defendant waited on her and gave her the wine, and called it wine when he gave it to her, that defendant got the bottle, from which he poured the wine, under the counter. This witness further testified that what she drank stimulated her; that other girls drank at the same time and that they called for wine. The inference is that defendant filled the glasses of the other girls from the same bottle from which he poured the drink for witness Hazel York.
H. C. West, a witness for the state, testified that about two weeks prior to January 1, 1927, he was at defendant's roadhouse and at that time defendant gave him two drinks of wine and a drink of liquor; that the wine was not much sour and not much sweet"; that the liquor tasted like whisky and was whisky and that defendant said it was whisky. West further testified that the whisky he drank came from a pitcher.
Defendant, as a witness in his own behalf, denied that he gave witnesses York and West wine and whisky. The jury was the judge of the credibility of the witnesses and of the weight of the evidence. Under the evidence adduced the question of the guilt of the defendant was clearly for the jury. State v. Stewart, 216 Mo. App. 644, 271 S. W. 875.
Defendant in the motion for new trial assigned as error the admission of evidence as to the visit of the officers and as to the jugs they found. An examination of the record shows that the raid was mentioned frequently by the witnesses, but that no objection was made until near the close of the state's case. The court overruled the objection, remarking at the time that several witnesses had referred to the raid. Agnes Byrnes, the last witness used by the state, was on the stand when defendant objected to evidence as to the raid. After the objection was overruled the witness merely stated what several other witnesses had stated without objection. We do not think that defendant was prejudiced by the reference of witness Byrnes to the raid. The most serious offense respecting the examination of witnesses by the prosecuting attorney was on the cross-examination of defendant. While defendant was on the stand and under cross-examination he was asked:
Counsel for defendant made this objection:
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