State v. Miller

• Decision Date: 12 December 1927
• Docket Number: 28208
• Citation: 300 S.W. 765,318 Mo. 581
• Parties: The State v. Henry Miller, Appellant
• Court: Missouri Supreme Court

300 S.W. 765

318 Mo. 581

The State v. Henry Miller, Appellant

No. 28208

Supreme Court of Missouri

December 12, 1927

Appeal from Douglas Circuit Court; Hon. Fred Stewart Judge.

Affirmed.

North T. Gentry, Attorney-General, and Smith B Atwood, Assistant Attorney-General, for respondent.

(1) The information sets forth the constituent element of the crime charged, and is therefore sufficient. Sec. 21, Laws 1923, p 242; State v. Griffith, 279 S.W. 138; State v. Brown, 262 S.W. 711. The words "barter and trade" are mere surplusage, since they neither add to, nor detract from the element of the offense. While technically, they import a slightly different shade of meaning they are here synonymous with "sell" within the meaning of the statutes. (2) Assignment number one is insufficient. State v. Parsons, 285 S.W. 412. (3) There is no theory of law which would render the testimony of Davidson, Hameby and Henson inadmissible, or the admission thereof error. At most, only the question of credibility is involved, and that is a question for the jury. (4) Appellant is not clear and specific in his charge of variance. We can see no variance between the allegations of the information and the proof submitted. True, there was evidence of a trade, as there was also evidence of a sale for a casing. Proof of either would be sufficient to convict.

OPINION

White, J.

Information was filed in the Circuit Court of Douglas County charging that defendant, September 20, 1925, did "unlawfully and feloniously sell, barter and trade three pints of moonshine to one Victor Davidson for and in consideration of one 30 x 3 1/2 automobile tire."

On trial by jury April 13, 1926, he was found guilty and his punishment assessed at two years in the penitentiary. Judgment followed, from which in due form he appealed.

Evidence offered by the State showed that three young boys, Wess Hameby, Victor Davidson and Leon Hensen, had been convicted and had received jail sentences for stealing an automobile tire on the day of the offense alleged in the charge against the defendant. After serving part of a term of thirty days for which they were sentenced, they were released after five or six days and appeared as witnesses against the defendant. Each testified that the casing which they had been charged with stealing they had traded to the defendant for three pints of liquor which they said was moonshine and made them drunk. There was no objection to their qualification to identify the liquor as moonshine.

In cross-examination the defendant endeavored to show that the boys were released from jail in consideration of their testifying against him. The witness Hameby was asked how he happened to get out of jail. He said the boys heard that some one had "turned in" the defendant, and then they just told how they got the whiskey from him. It was admitted by the prosecuting attorney that he caused the boys to be released.

The defendant denied that he sold or traded the boys any liquor. He said he found a bottle in Davidson's car; that the boys proposed to trade him the tire for liquor; that he refused and his brother-in-law, one Philip Loveall, made some sort of dicker for the tire. Loveall testified that he bought the tire from the boys for three dollars.

Appellant has filed no brief in this case.

I. The first assignment of errors in the motion for new trial is as follows: "The verdict of the jury is against the evidence and there is no substantial evidence to support the verdict."

The Attorney-General claims that the assignment is not sufficiently specific, and cites the case of State v. Parsons, 285 S.W. 412. In that case the assignment of error held insufficient was as follows: "The verdict is against the evidence and against the weight of the evidence."

To say that the verdict is against the evidence is the equivalent of saying that it is against the weight of the evidence. Those two expressions mean one and the same thing. It is the duty of the trial court to determine whether a verdict is against the weight of the evidence. We do not pass upon it here unless the trial court manifestly has abused its discretion in that respect. The assignment here does not say that the trial court abused its discretion in failing to sustain the motion on that ground.

The remainder of the assignment, that there is "no substantial evidence to support the verdict," is entirely sufficient. That requires an examination of all the evidence, and the objection could not be put in any form with greater particularity which would relieve us of that duty. When it says that there is no "substantial evidence" to support the verdict, it means that the facts constituting the crime have not been proven.

Substantial evidence in this case supports the verdict. The three boys testified positively and directly to the purchase of three pints of moonshine liquor from the defendant. Appellant alleges in his motion that they were "self-confessed thieves," serving jail sentences, and were discharged as an inducement for them to tell. The evidence is not clear as to any bargain between the prosecuting attorney and the witnesses. It shows only that they were released and afterwards...