State v. McCorkendale

• Citation: 300 S.W. 815
• Decision Date: 12 December 1927
• Docket Number: 27881
• Parties: STATE v. McCORKENDALE
• Court: Missouri Supreme Court

300 S.W. 815

STATE v. McCORKENDALE

No. 27881

Supreme Court of Missouri, Second Division

December 12, 1927

C. I Bennington and H. K. Bente, both of Sedalia, for appellant.

North T. Gentry, Atty. Gen., and David P. Janes, Asst. Atty. Gen for the State.

WALKER J., concurs.

OPINION

BLAIR J.

This case was argued and submitted at the April term, 1927, and comes to the writer upon reassignment. Appellant was convicted of using a still, mash barrel, and other distilling equipment and utensils in the process of distilling and manufacturing intoxicating liquor for sale, contrary to the felony provisions of section 2, p. 237, Laws of 1923. After judgment was entered on the verdict, an appeal was granted to this court.

The sufficiency of the evidence to support the verdict is one of the grounds urged in the motion for new trial; but there is not the slightest doubt that most substantial evidence was adduced to justify the jury in finding the appellant guilty.

Appellant and one George Welcome were found by the sheriff and his deputy at an old coal mine about six miles west of Lexington, in Lafayette county. They were living in a tent near the mouth of the drift entering the mine. A little more than two sacks of sugar and some dried peaches were found at the tent and in a nearby automobile. Subsequent search under a search warrant disclosed a complete still hidden in a hole in the old mine dump. It was hooked up and ready for operation, with warm mash in the cooker. The oil stove, evidently used to furnish the heat, was not burning at the time. Two barrels of mash and a five-gallon jug of hootch or moonshine whisky were also found.

One William White testified that, on or about the 6th or 8th day of May, he bought a gallon of whisky from appellant and George Welcome. The still was discovered by the sheriff and his deputy about a week after such sale. The state entered a nolle pros as to defendant Welcome, who had been charged jointly with appellant, and Welcome testified to the fact that he and appellant had set up the still, and had been operating it for some weeks, and had been making whisky with it, and had been selling the manufactured product.

The appellant testified that he and Welcome had been working at the mine in getting out and selling coal, but denied having had anything whatever to do with the still. He claimed it was owned and operated by Welcome alone. He also denied making or participating in any sales of whisky produced from such still. There was ample evidence of appellant's guilt. The jury manifestly did not believe his story. The judgment cannot be disturbed, if the case was otherwise properly tried.

Counsel for appellant have filed a printed document here which is labeled 'Appellant's Statement, Brief, and Argument.' As a statement it is very inaccurate, in that it states the evidence of appellant, and largely ignores the state's evidence. There are no appropriate assignments of error or points and authorities. Under the title 'Brief' there are a number of statements of general propositions of law, some of which have no application whatever to any issue in the case. The brief winds up with four paragraphs charging the trial court with various errors.

It is our duty to examine the record and to see that the accused had a fair and impartial trial, regardless of informalities and deficiencies in the brief filed here in his behalf. The verdict was in the following form:

'We, the jury, find the defendant, Robert McCorkendale, guilty, as charged in the information, of unlawfully using a still for the manufacture of intoxicating liquor, and assess his punishment at imprisonment in the penitentiary for a period of two years.'

The appellant has not challenged the formal sufficiency of such verdict, but our commissioner, to whom the case was first assigned, was of the opinion that the verdict was special and not general, and that it was not sufficient, because an essential element of the crime defined by the statute, to wit, that the still was used for making intoxicating liquor for sale, was omitted. As the verdict is part of the record proper, it is our duty to determine its sufficiency, whether such verdict is challenged in the motion for new trial or not.

The offense defined in section 2, p. 237, Laws of 1923, is not a felony, unless the still is used to make intoxicating liquor 'for sale.' If the verdict be regarded as special, and not general, it is bad for omission of the words 'for sale.' But we regard the verdict as general and not as special. The use of the words 'as charged in the information' made the verdict general. The use of the words 'of unlawfully using a still for the manufacture of intoxicating liquor' was mere surplusage, and did not have the effect of changing such general verdict to a special verdict.

In State v. Glazebrook (Mo. Sup.) 242 S.W. 928, loc. cit. 934, Walker, J., said:

'While it would have been sufficient for the verdict to have found the defendant guilty as charged in the information, followed by the assessment of the punishment, the added words did not have the effect of rendering the verdict special, and hence the citation to the cases of State v. Griffin (Mo. Sup.) 228 S.W. loc. cit. 802, and State v. De Witt, 186 Mo. loc. cit. 68, 84 S.W. 956, is inapplicable.'

In State v. Pollock, 105 Mo.App. loc. cit. 278, 79 S.W. 981, Bland, P. J., said:

'While a general finding of guilty as charged in the indictment, or of guilty, fixing the punishment, is sufficient, if the jury undertakes to set out in a verdict the elements of the crime of which they find the defendant guilty and make no reference to the indictment, every material element of the offense charged must be set forth in the verdict, otherwise it will not support a judgment.' (Italics ours.)

In State v. Fink, 186 Mo. 50, 84 S.W. 921, the exact form of the verdict is not set out in the opinion, but undoubtedly a finding of the value of the goods was not made. Fox, J., said:

'There is no substantial merit in the complaint of appellant as to the form of the verdict. The jury found the defendant guilty of receiving stolen goods, knowing the same to have been stolen, as charged in the indictment. It was essential to charge the value of the goods in the indictment, and they were charged to have been of the value of more than thirty dollars; hence the finding of guilty 'as charged in the indictment,' was responsive to the issue presented, and is in fact a finding that the goods were of the value of more than thirty dollars.'

In State v. Bohle, 182 Mo. 58, 81 S.W. 179, Fox, J., said:

'Upon the second proposition, as to the contention urged that the verdict is insufficient because it fails to state the value of the goods obtained by the false pretenses, the charge in the indictment and the evidence before the jury must be taken into consideration with the form of the verdict. The verdict was: 'We, the jury in the above-entitled cause, find the defendant guilty of obtaining property by means of false pretenses as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for two years.'

'The indictment charged the goods to have been of the value of $ 91.50. All the evidence shows that the goods were of that value and that valuation, moreover, was fixed by contract, and there is absolutely not the slightest evidence that they were of less value than $ 30. The value of the goods as charged in the indictment was not a controverted question in the trial of the cause; about that, there was no dispute. There was no necessity of the jury incorporating the value of the goods in their verdict. We know of no legal rule which required them to do so. They were directed by the instructions of the court to assess the punishment at imprisonment in the penitentiary, if they found the goods of the value of $ 30 or more. Their verdict was responsive to the directions of the court, by finding him guilty of obtaining property by means of false pretenses as charged in the indictment, and assessing his punishment at imprisonment in the penitentiary. It cannot be maintained that they did not respond to the issue presented to them. They were told that if they found the value of the goods to be $ 30 or more, to assess the punishment at imprisonment in the penitentiary; having assessed his punishment at imprisonment in the penitentiary, it must logically follow that they found the value of the goods to be of that amount which authorized such imprisonment. There being no express requirement that the jury should expressly state the value of the goods in their verdict, and being prohibited from assessing a punishment at imprisonment in the penitentiary unless the goods were of the value of $ 30 3r more, the finding of the jury, and their assessment of the punishment at imprisonment in the penitentiary, are conclusive that they found the value of the goods to be $ 30 or more; especially is this true when all the evidence, without contradiction, was that the goods were of the value of $ 91.50.

'The uniform expressions of all the courts is that the verdict of a jury is not to be tested by the technical rules of construction which are applicable to pleadings; but should be liberally construed in view of the issues tried, and all reasonable presumptions are indulged to sustain the verdict and that the jury has found all the facts necessary to support it. 22 Ency. Pl. and Pr. 959 and 960, notes 2 and 3, and cases cited; State v. Craige, 89 N.C. 475 ; Honeycut v. Angel [20 N. C.] 4 Dev. & Bat. (N. C.) [449] 306.

'Under the evidence in this cause, there being no dispute as to the value of the goods, while a general verdict, finding the defendant guilty in manner and form as charged in the indictment ...