State v. Maher

• Decision Date: 09 November 1925
• Docket Number: No. 15304.,15304.
• Citation: 276 S.W. 1034
• Parties: STATE v. MAHER.
• Court: Missouri Court of Appeals

276 S.W. 1034

STATE v. MAHER.

No. 15304.

Kansas City Court of Appeals. Missouri.

November 9, 1925.

Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.

"Not to be Officially Published."

Denny Maher was convicted of possessing intoxicating liquor, and he appeals. Affirmed.

L. C. Cook and T. A. Cummins, both of Maryville, for appellant.

O. L. Curl, of Kansas City, and Chas. D. Stilwell, of Maryville, for the State.

BLAND, J.

Defendant was convicted of possessing intoxicating liquor, and his punishment fixed at a fine of $200 and 9 months in jail, and he appeals.

Defendant has not favored us with a brief. The evidence shows that on the day in question Tom Farnan and wife saw defendant hiding under the oil house in charge of Farnan, in the village of Gilford, a gunny sack in which was a bottle half filled with a liquid of the color of water; that shortly thereafter defendant was seen by Farnan drunk, and later was seen by the witness Farnan in a store up town, at which last time defendant told the witness to put the sack containing the bottle back where he found it and everything would be all right, and "if I didn't he would have me pinched for transporting, for I moved it from where he had put it." The witness said that he did not know what the bottle contained. Another witness testified that he saw defendant in the store in question on the afternoon of said day, and that defendant was drunk (this was after defendant had left the sack under the oil house); that at that time defendant told the witness that "he had some whisky up there, at Tom Farnan's there, by the oil tank," and wanted me to go up and get it. "I told him that I didn't want to have anything to do with it. He said it was good whisky, and I told him that I didn't drink any, and I didn't want to mess with it."

The motion for a new trial is as follows:

"Comes now the defendant and moves the court to set aside the verdict of the jury heretofore rendered in the above-entitled cause, and to grant defendant a new trial therein. For reason therefor the defendant says:

"First. The verdict of the jury is against the law of the case, and against the law as declared by the court in its instructions.

"Second. The court erred in refusing to give to the jury a peremptory instruction directing the jury to acquit defendant as prayed for by the defendant at the close of the state's case, and again at the close of all the evidence.

"Third. The evidence introduced by the state as tending to prove that the defendant possessed intoxicating liquors is insufficient in law to sustain a verdict of guilty.

"Fourth. There is no evidence in the cause legally establishing the fact that the bottle which defendant is charged of possessing bad a beverage in it containing as much as one-half of 1 per cent. of alcohol.

"Fifth. The court erred in admitting evidence offered by the state tending to prove...