State v. McGinnis

• Decision Date: 25 May 1928
• Docket Number: No. 28610.,28610.
• Citation: 7 S.W.2d 259
• Parties: THE STATE v. ARTHUR McGINNIS, Appellant.
• Court: Missouri Supreme Court

7 S.W.2d 259

THE STATE v. ARTHUR McGINNIS, Appellant.

No. 28610.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Morgan Circuit Court. — Hon. Henry J. Westhues, Judge.

AFFIRMED.

J.W. McClelland and Barney Reed for appellant.

(1) The testimony of Edmund Metcalf was improper, harmful and prejudicial to the defendant, and there is only one fair and just conclusion that can be reached therefrom, and that is that the defendant did not have a fair and impartial trial. The verdict was founded on conjecture and suspicion, was purely conjectural in its nature and arrived at by building one inference upon another to reach a conclusion, which is not permissible under the well-settled rulings of the laws. (a) Suspicions, however grave, are not of themselves sufficient to support conviction. State v. Ferrell, 248 S.W. 979; State v. Woodson, 175 Mo. App. 393; State v. Johnson, 234 S.W. 794; State v. Rutledge, 262 S.W. 718; State v. Counts, 234 Mo. 508; State v. Capps, 278 S.W. 695; State v. Tallo, 274 S.W. 466. (b) The trial court should grant a new trial for misconduct of the jury or jurors where the wrong cannot be established for appellate review. Bank of Malden v. Stokes, 280 S.W. 1055. (2) The information charges the felonious transportation of corn whiskey. The general instruction follows the information only as to hootch, moonshine and corn whiskey. The evidence utterly fails to show the transportation by the defendant of any hootch, moonshine or corn whiskey, and the finding of the jury that he did transport corn whiskey was contrary to the law and evidence. As to whether the defendant transported corn whiskey, either to the school grounds or from the school grounds, is purely conjectural, and to find him guilty at all would be wholly from circumstantial evidence, which in this case is wholly insufficient in law. "Circumstances must point to the guilt of the accused so clearly as to exclude every reasonable hypothesis of innocence, and his guilt must be shown to the satisfaction of the jury beyond a reasonable doubt, it not being enough that there be strong suspicion or even probability of his guilt." State v. Buckley, 274 S.W. 74; State v. Ruckman, 253 Mo. 487; State v. Adkins, 222 S.W. 431; State v. Singleton, 243 S.W. 147; State v. Lee, 272 Mo. 121.

North T. Gentry, Attorney-General, and H.O. Harrawood, Special Assistant Attorney-General, for respondent.

(1) The evidence of defendant's guilt, while not very clear, was of a substantial nature and sufficient to take the case to the jury. Where there is substantial evidence of defendant's guilt, this court will not attempt to weigh such evidence, as that is the province of the jury. State v. White, 289 S.W. 953; State v. Cannon, 232 Mo. 215; State v. Mitchell, 252 S.W. 384; State v. Loftis, 292 S.W. 29; State v. Perry, 267 S.W. 832; State v. Yandell, 201 Mo. 662; State v. Morris, 279 S.W. 141. (2) The motion for new trial, based on the grounds of newly-discovered evidence is without merit, as all the parties mentioned as being able to give new testimony except one (Marion Taylor) were present and testified at the trial, and there is nothing to show why this evidence was not available at the time the trial was had. State v. Gibbs, 186 S.W. 986; State v. Clark, 203 S.W. 627; State v. Emmons, 225 S.W. 894; State v. Hayden, 190 S.W. 311; State v. Arnett, 210 S.W. 82. (3) The verdict of the jury cannot be impeached by an affidavit of one of the jurors, nor by evidence of others as to statements of a juror after his discharge. Bank of Malden v. Stokes, 280 S.W. 1055; McFarland v. Bellows, 49 Mo. 311; Philips v. Stewart, 69 Mo. 149; Hoffman v. Dunham, 202 S.W. 429; Evans v. Klusmeyer, 256 S.W. 1036; Proffer v. Miller, 69 Mo. App. 501; State ex rel. Rogers v. Gage Bros. & Co., 52 Mo. App. 464.

HENWOOD, C.

By an information filed in the Circuit Court of Morgan County, appellant was charged with the unlawful transportation of intoxicating liquor commonly called "Hootch Moonshine Corn Whiskey" in the first count, and with the unlawful sale and giving away of the same in the second count. The jury found him guilty as charged in the first count and assessed his punishment at imprisonment in the penitentiary for three years. He was sentenced accordingly, and appealed.

The evidence produced by the State shows that the closing exercises of the Coffey School, in Morgan County, were held on the afternoon of April 22, 1926, and that, while the entertainment was going on, appellant and several other young men interested themselves in drinking liquor from a half-gallon jug, on the school grounds and in the vicinity thereof. It does not appear, by direct evidence, who took the jug of liquor there, but it does appear that appellant claimed it, and that, late in the afternoon, he put it in his Ford roadster and drove away. It further appears that appellant and his nephew, Roy McGinnis, became intoxicated, and that both of them accused Pete Taylor of attempting to steal the whiskey and engaged in a fight with him as a result of such accusation. As to the character of the liquor in the jug and appellant's actions in connection with it, Edmund Metcalf testified as follows:

"Q. Did you see him when he left? A. Yes, sir.

"Q. What, if anything, did he put in his car before be went away? A. A half gallon jug.

"Q. Where did he get it? A. Well, he claimed on the start that he had it hid. He accused Pete Taylor of stealing it and this boy was drunk and forgot where he had it and my brother found it up on the hill, there, and Earl McClure and Louis Hildebrand was watching it. When he came down there he said something like `you damned son of a bitch and took the jug away from him and put it in his car and left.

"Q. Do you know what was in the jug? A. Whiskey.

"Q. What kind of whiskey? A. Corn whiskey, I guess. That is the only kind we have got.

"Q. Was it white? A. Yes, sir.

"Q. Well, the jug that you saw him take away with him — did you examine into the jug to see what was in it? A. I did. I seen the jug before ever he got it.

"Q. Did you get a drink out of it? A. No, I didn't drink any of it, but I smelled of it and poured a little of it out — to see what it was."

When interrogated along the same line. Homer Metealf gave the following testimony:

"Q. State, later on in the day, if anyone claimed that whiskey as his own? A. Arthur McGinnis, and he took it home with him late in the evening.

"Q. (By THE COURT): Was there any whiskey left in it that night? A. There was some left when they left with it."

Louis Hildebrand, Roy McGinnis and Luther Gee were the only witnesses who took the stand in behalf of appellant.

Louis Hildebrand said he did not know who took the whiskey to the schoolhouse. When asked if appellant took any whiskey away from the schoolhouse, he said: "I don't remember, now, whether he did or not." He further testified that Roy McGinnis said the whiskey belonged to Homer Metcalf. When cross-examined, he admitted that appellant lived in his home and that he and appellant left the schoolhouse toghether in the Ford roadster.

Roy McGinnis said he did not know who brought the whiskey to the schoolhouse, nor who took it away, but admitted that he saw Homer Metcalf put the jug in appellant's car. On cross-examination, he further admitted that appellant "was there by the car" when Homer Metcalf put the jug in the car, but insisted that Homer Metcalf "said it was his'n." And he further admitted that both he and appellant had a fight with Pete Taylor over the whiskey.

Luther Gee testified that he had visited Louis Hildebrand's home, where appellant lived, and had never seen any whiskey nor bought any whiskey there.

I. Counsel for appellant contend with great earnestness that the evidence is not sufficient to sustain this conviction. We see no merit in this contention. Both the character of the liquor and the transportation of the same by appellant were Sufficient established by positive testimony. Referring to the Evidence. liquor in the jug, Edmund Mctcalf said he "smelled of it and poured a little of it out — to see what it was." and that it was "corn whiskey." This court has repeatedly held that lay witnesses may be permitted to identify hootch, moonshine and corn whiskey by their ordinary experience in tasting or smelling it. [State v. Wheeler, 2 S.W. (2d) 777; State v. Stough, 2 S.W. (2d) 767; State v. Sappington, 2 S.W. (2d) 729; State v. Black, 289 S.W. 804; State v. Brown, 285 S.W. 995; State v. Brock, 280 S.W. 48.] Two of appellant's companions on the occasion in question (the Metcalf brothers), testified, in substance, that he (appellant) claimed the whiskey as his own, that he fought for it, and that, when the party was over, he put what was left of it in his car and went on his way rejoicing. Appellant's nephew and witness (Roy McGinnis) said the jug was put in appellant's car, while appellant "was there by the car." Another witness for appellant (Louis Hildebrand), who left the school grounds with appellant in the Ford roadster, said he did not "remember" whether appellant took any whiskey away. These facts and circumstances are not only sufficient to support the finding of the jury that appellant took the jug of whiskey away from the schoolhouse in his car, but also that he took it to the schoolhouse in his car, if they did so find. [State v. Janes, 1 S.W. (2d) 137; State v. Knight, 300 S.W. 719; State v. Steelman, 300 S.W. 743; State v. Connor, 300 S.W. 685; State v. Bishop. 296 S.W. 147; State v. Thompson, 289 S.W. 648; State v. Helpley, 279 S.W. 701; State v. Bennett, 270 S.W. 295.]

II. It is also contended that the punishment assessed by the jury is excessive, that the verdict was prompted by passion and prejudice on the part of the jury, and that the jury was influenced by the failure of the appellant to Excessive testify in his own behalf and by matters outside of Punishment. the evidence. The fixing of punishment for crime is...