State v. Myers

• Decision Date: 01 December 1931
• Docket Number: No. 30998.,30998.
• Citation: State v. Myers, 44 S.W.2d 71 (Mo. 1931)
• Parties: STATE v. MYERS.
• Court: Missouri Supreme Court

44 S.W.2d 71

STATE v.MYERS.

No. 30998.

Supreme Court of Missouri, Division No. 2.

December 1, 1931.

Appeal from Circuit Court, Lewis County; Paul D. Higbee, Judge.

Virgil Myers was convicted of selling hooch, moonshine, corn whisky, and he appeals.

Affirmed.

Gray Snyder, of Palmyra, and Ben Ely, Jr., of Hannibal, for appellant.

Stratton Shartel, Atty. Gen., and Ray Weightman, Asst. Atty. Gen., for the State.

FITZSIMMONS, C.

Defendant was charged by indictment with the unlawful sale of one pint of hooch, moonshine, corn whisky, in Lewis county, in August, 1928.Upon trial, on January 14, 1930, he was found guilty, and his punishment was assessed at two years in the penitentiary.His motion for a new trial having been overruled and sentence duly imposed, he appealed.The record is wanting in certain essentials, owing to the loss, after the trial, of the indictment, application for a change of venue, application for a continuance, the instructions and motion for a new trial.Defendant furnished copies of the indictment and of the motion for a new trial.But the applications for a change of venue and for a continuance, and also the instructions, were not found or substituted and are not before us.

I.The main, if not the sole, question presented by the appeal is the sufficiency of the evidence that certain liquor sold to Otto Shanks was hooch or moonshine.Direct evidence of a sale was given both by Shanks, the buyer, and by the defendant.But, while Shanks testified that defendant sold to him three pints of moonshine and hooch for $3, defendant testified that another man made the sale.The jury, by its verdict of guilty, found that defendant made the sale, and thus fixed as a fact not subject to review what had been an issue in the trial.According to defendant, he had trudged weary miles along a highway to seek work with Otto Shanks' threshing outfit, on that day in August, 1928, when he met a man named Buckingfelt driving an automobile.Buckingfelt inquired where Shanks was threshing.Defendant answered that he was going that way, and he entered the car, quite unaware, as defendant testified, that Buckingfelt was going to sell liquor where defendant meant to offer himself for hire at honest labor.When the two men reached the threshing crew in David Wallace's field, defendant left the car, as he testified, to inquire for work.But defendant, by his own testimony, was either near the car or in it when Wallace, the farmer, and Shanks, the thresher, walked up and Shanks bought the liquor.Defendant rode away with Buckingfelt, even as he had come with him, and the jury had good reason to believe the testimony of Shanks that defendant and not Buckingfelt made the unlawful sale.

Defendant urges that the trial court should have sustained the demurrer to the evidence, for the failure of proof that the liquor which was sold was hooch, moonshine, corn whisky as charged in the indictment.Otto Shanks, when asked what he purchased from defendant, answered: "Three pints of moonshine liquor and hooch."Defendant then objected on the ground that defendant had not qualified himself to state whether it was hooch, moonshine, or some other kind of intoxicating liquor.The court inquired of Shanks whether he knew what it was, and he replied that in his opinion it was as he had stated.The court overruled an objection of defendant that the witness was not competent to express an opinion.Defendant, for the declared purpose of impeaching the credibility of Shanks, had him to testify that he had been a member of several grand juries, and that before and after and sometimes during these periods of public service he possessed intoxicating liquor.Defendant also elicited from Shanks that during the threshing season of 1928, prior to the purchase from defendant, he had intoxicating liquor which he carried from farm to farm, that he drank all of it except one drink, and that it was hooch.In answer to a further question of defendant as to what hooch was, Shanks testified that it was any illegally manufactured liquor; that is, hard liquor, made by the process of distillation.Shanks further testified that he took one drink of the hooch which he bought from defendant and gave the rest to David Wallace.When asked on cross-examination whether he was competent to tell hooch from other whisky, Shanks answered: "Perhaps not in some cases."David Wallace, examined by the court as to the kind of intoxicating liquor which Shanks got from the automobile in which defendant came into his field, testified as follows:

"Q.Willyou tell us what kind of liquor...