State v. Leonard

• Decision Date: 09 October 1944
• Docket Number: No. 39060.,39060.
• Citation: 182 S.W.2d 548
• Parties: STATE v. LEONARD.
• Court: Missouri Supreme Court

182 S.W.2d 548

STATE v. LEONARD.

No. 39060.

Supreme Court of Missouri, Division No. 2.

October 9, 1944.

Appeal from Circuit Court, Linn County; G. Derk Green, Judge.

Jessie Leonard, sometimes known as Jessie Moore, was convicted of selling intoxicating liquor without a license, and she appeals.

Reversed and remanded.

Errol Joyce, of Brookfield, for appellant.

Roy McKittrick, Atty. Gen., and Robert J. Flanagan, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Jessie Moore was convicted of selling intoxicating liquor without a license, Art. 1, Ch. 32, Mo. R.S.A., and sentenced to two years' imprisonment in the penitentiary.

She contends that she is entitled to a new trial because the prosecuting attorney persisted in putting in evidence and parading before the jury other offenses than that for which she was on trial; because he was permitted to unfairly cross-examine the appellant's witnesses to her prejudice; because he argued to the jury matters of which there was no evidence as of his own personal knowledge and because his argument to the jury was so vituperative and inflammatory as to inflame the jury and unjustly prejudice them against her. She urges that the cumulative effect of the prosecuting attorney's conduct in all these respects was such as to deprive her of a fair trial. The state does not attempt to justify any of the matters complained of which appear in the record but contends either that they were not properly and sufficiently objected to during the trial or that they were not properly presented in the appellant's motion for a new trial.

The substantial evidence of the offense was that Bill Manning and Allie Jamison, agents of the Department of Liquor Control, went to the appellant's home in Brookfield about 11:35 on the evening of July 3, 1943 and remained until about 2 o'clock. There were twenty or thirty people present. Some were dancing, some were shooting dice and some were drinking highballs and beer. Jamison went almost directly to the dice table and began shooting craps. Manning went to the kitchen and purchased two bottles of beer. He gave one of the bottles of beer to Jamison as he stood at the dice table. He took a sample from the other bottle of beer and drank what was left. Manning then went to the kitchen and purchased a coke highball. He took a sample from the highball and later purchased a second highball from which he took a sample. Manning testified that the appellant sold him each of the drinks and that he paid her for them. An analysis of the samples by the department's chemist revealed an alcoholic content of 3.49 per cent by weight and 4.36 per cent by volume, 4.74 per cent by weight and 5.98 per cent by volume and 8.09 per cent by weight and 10.05 per cent by volume, respectively.

The appellant and her witnesses denied that she sold either the beer or the whiskey. They admitted that they saw one stranger there that evening — Jamison. They remembered him because, they said, he had a bottle of whiskey in his hip pocket. But they all denied that Manning was ever present.

Thus it is clear that the evidence relating to the dice table and shooting craps was admissible even though it proved an offense other than selling liquor without a license and even though the defendant's witnesses denied the existence of the dice table. It was the state's evidence identifying the circumstances under which Manning was present, purchased beer and gave one bottle to Jamison. Thus the evidence was analogous to proving another offense to rebut the defense of alibi. 20 Am.Jur., Sec. 311, p. 290. The dice game was a part of the transaction, the circumstance and the condition under which the offense was committed. 22 C.J.S., Criminal Law, § 663, p. 1049; State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877.

Testimony which the appellant contends shows other offenses improperly brought before the jury and unjust cross-examination of her witnesses and the circumstances and manner in which it was received in evidence is as follows:

Howard Kent, sixty-four years of age, lived with the appellant and her husband. He mowed the lawn and worked around the house. He was present on July 3rd and 4th from 11:30 until after 2 o'clock. He saw Jamison but testified that Manning was not there. He was cross-examined fully as to whether he had seen Manning or Jamison shooting dice, where the dice table was and whether the Moores had whiskey or beer. Then the record is as follows:

"Q. * * * as a matter of fact for five years you have been a runner for Jessie Moore? A. No, sir.

"Q. Haven't you solicited strangers in hotels to go to Jessie Leonard's? A. Absolutely not.

"Q. You never went over on Helm Street and solicited people to go to Jessie Leonard's? I want to show that was a bawdy house.

"By Mr. A. L. Burns — I object, I say he cannot bring this evidence in.

"By the Court — Overruled. (Exception.)

"Q. Every evening for three years haven't you gone to Helm Street and solicited men to come to Jessie Moore's and get whiskey? A. Absolutely not.

"By Mr. A. L. Burns — I object to that.

"By the Court — Overruled. (Exception.)

* * * * * *

"Q. You mean you don't solicit for Jessie Leonard or Jessie Moore? A. I do not.

"Q. For any kind of business? A. No, sir."

Steve Logue was a painter then doing some work for the appellant. He was present when the illegal sales of liquor were supposed to have been made. He saw Jamison but denied that Manning was ever there. The following is from a part of his cross-examination:

"Q. As a matter of fact you have been pimping for that concern since you left out at Zura Downing's? A. Never in my life.

* * * * * *

"Q. The city let you out (as fireman) because you stayed drunk? A. No, sir.

"Q. What did the City of Brookfield let you out for? A. Politics.

"By Mr. A. L. Burns — I am objecting to this line of questioning.

"By the Court — Sustained.

"Q. You worked for the City for seventeen years and you got let out on account of drunkenness? A. That is what Anderson said."

The following statements are excerpted from the prosecuting attorney's argument:

"Some may say she is a woman, let her go, get at some of these men, let's let her off with a little fine of a thousand dollars in this case. Why they would pay off like a snap. * * * Such characters as Steve Logue, Howard Kent, et al. this case is full of scums and bums.

"By Mr. A. L. Burns — I am objecting to this line of argument.

"By the Court — Overruled. (Exception.)

* * * * * *

"I am going to ask every juror where intoxicating liquor is sold, regardless of whether it is being sold by a man or a woman, to protect these sweet little girls and boys, — not to have somebody say a block away Jessie Leonard is running a house here, she made her money off of the poor and unfortunate. Howard Kent hasn't worked for twenty years. I knew Howard Kent when he was a man — he is a shell now. He is handled by this woman until he cannot tell anything but what the boss thinks. * * * That is the place where the fine little boys come out saturated. I am asking this jury to make it a penitentiary sentence. * * *

"I am not so worried about you twelve fellows, I am sure that you can take care of yourselves. But one-fourth of your population are little fellows, little boys and little girls, they are looking to you and they are looking to me, they cannot serve on juries, they cannot be prosecuting attorneys. I have taken an oath to 21,000 people to clear Missouri of Jessie Leonard who is serving whiskey, shooting craps and doing everything else —

"By Mr. A. L. Burns — I object to that statement.

"By the Court — Sustained, keep within the record.

— those little boys and girls have a right to live in a clean community, they are looking to us to get the job done. * * * Why if she is turned loose you don't know how those cunning and vicious people work, — wouldn't it shock you, we will put some woman in charge there, the prosecuting attorney looks wise, and we will hire his brother to come in and defend and she will be turned loose. I mean gentlemen, in your lives you never seen a situation where a defendant's case was so full of scums and bums.

"By Mr. A. L. Burns — I object to that, — incompetent.

"By the Court — Overruled. (Exception.)

* * * * * *

"I know poor old Howard Kent, soaked all the time —

"By Mr. A. L. Burns — I object to that statement.

"By the Court — Sustained.

"Now, Verl Franklin, he is one of our characters here in —

"By Mr. A. L. Burns — I object to any reference to Mr. Franklin, he was not a witness here.

"By the Court — Sustained."

It is obvious that certain of the matters now complained of were not properly and timely objected to in such a manner as to call them to the trial court's attention or to predicate an assignment of error upon them either in a motion for a new trial or in this court. For example, there was no objection when Logue was asked whether he had "been pimping for that concern." When he was asked why the city had fired him the appellant's objection was sustained. When the prosecuting attorney said to the jury "That is the place where fine little boys come out saturated" there was no objection, even though there was no evidence to that effect. When he spoke of Howard Kent as being "soaked all the time" and of Verl Franklin, who was not a witness, the court sustained the appellant's objection and no other or further action was requested of the court. The appellant's motion for a new trial does not assign as error the prosecutor's question to Logue of whether he had been pimping for the appellant. Normally, the general rules apply to these matters. If evidence is inadmissible the appellant must timely object to it and state the reason for the objection, otherwise it cannot become the basis for a new trial in either the trial or appellate...