State v. Pendergraft

• Decision Date: 03 March 1933
• Docket Number: 32301
• Citation: 58 S.W.2d 290,332 Mo. 301
• Parties: The State v. Clifford Pendergraft, Appellant
• Court: Missouri Supreme Court

58 S.W.2d 290

332 Mo. 301

The State v. Clifford Pendergraft, Appellant

No. 32301

Supreme Court of Missouri

March 3, 1933

Appeal from Ozark Circuit Court; Hon. Robert L. Gideon Judge.

Affirmed.

G W. Rogers for appellant.

(1) The trial court erred in overruling the demurrer to the evidence at the close of the State's testimony and at the close of all of the evidence. Mere presence of the defendant at the place where a crime is committed is not enough to sustain a conviction. State v. England, 321 Mo. 633; State v. Pope, 269 S.W. 411; State v. Dildine, 269 S.W. 653. The defendant's presence at the place where the crime was committed and his flight therefrom are the only suspicious circumstances proven by the evidence in this case. This is not enough to sustain a conviction. (2) The court erred in admitting State's Exhibit A which was the certificate of discharge from the penitentiary. Sec. 22, Art 2, Const. of Mo. In all the cases decided by this court where the certificate has been admitted, the question of the right of the defendant under the Constitution has never been raised. We insist that the defendant has the right to meet the witness face to face and to cross-examine the witness.

Stratton Shartel, Attorney-General, for respondent; Jas. K. Coolidge of counsel.

(1) The information properly alleges a former conviction. State v. Kilcullen, 301 Mo. 284, Sec. 4461, R. S. 1929. It follows the language of the statute and is sufficient. Sec. 4500, R. S. 1929; State v. Sandoe, 316 Mo. 61; State v. Brown, 304 Mo. 80. (2) The evidence was substantial and was sufficient to support the verdict. State v. Milstead, 315 Mo. 1; State v. Crabtree, 12 S.W.2d 25. It is not the province of this court to pass upon the weight of the evidence if there is substantial evidence of defendant's guilt. State v. Affronti, 292 Mo. 53. (3) The cross-examination of defendant was well within the bounds of his direct testimony. He stated a fact and the prosecuting attorney had the right to inquire as to particular circumstances to throw light on that fact. State v. Ayres, 314 Mo. 580; State v. Foley, 247 Mo. 638; State v. Wilson, 321 Mo. 568. (4) State's Exhibit A was properly admitted in evidence. The certificate of discharge was a certified copy of a public record required by law to be kept and the record itself became the witness. It could have been attacked in any fashion defendant saw fit, but there was nothing to cross-examine. Further, its function was not to assist in determining the guilt of defendant, of the crime charged, but merely had to do with his punishment. State v. Oertel, 280 Mo. 129; State v. English, 308 Mo. 695; State v. Vaughan, 199 Mo. 108; State v. Austin, 113 Mo. l. c. 538.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer upon reassignment. Appellant was charged by information in the Circuit Court of Ozark County with the felony of manufacturing hootch, moonshine, corn whiskey. The information also invokes against him the Habitual Criminal Act (Sec. 4461, R. S. 1929) for having served a sentence of two years in the State penitentiary upon a plea of guilty to the same offense. The jury found him guilty of the offense charged, sustained the accusation of a prior conviction, and assessed his punishment at five years' imprisonment in the State penitentiary. The motion for a new trial having been overruled and sentence passed, an appeal was taken. Appellant assigns as error the overruling of his demurrers to the evidence and improper cross-examination of appellant. He also raises a constitutional objection to the admission in evidence of a certified copy of the record of his prior imprisonment in and discharge from the penitentiary.

The testimony on behalf of the State tended to prove: Sheriff Lyman Stevens had been informed that a still was being operated in the northern part of Ozark County. He and his deputies, Frank Mahan and Jim Pitchford, went in search of the still on August 27, 1930, and found it on the top of a hill described as a sharp point in a rough heavily-wooded section. About six feet from the still were three barrels filled with mash and covered with brush. They found no moonshine that time, and no person was there. The still was not in operation. It was not coupled up. But the boiler and all necessary appliances were on hand. The sheriff and his men lay in wait the night long, and when no one had appeared, they went off to breakfast. They returned to the neighborhood at noon, and, from a hillside, across a small ravine or hollow, they saw smoke rising from the still. From the same spot there came to them the low voices of men, the rattle of things, and the noise of wood being split and dragged through the fallen leaves. The sheriff and his two deputies stayed observing and listening quite awhile, as they testified. Then they parted under a plan to close in upon the still from three points. Mahan and Pitchford approached from opposite sides and Pitchford reached the ridge at a point about forty steps from the still. Meanwhile, Mahan who had climbed the hill to within twelve feet of the mash barrels heard men run from a spot very close to the still. He called to them to halt but they ran the faster toward where Pitchford was supposed to be. At about the same moment Pitchford saw two men break out of the brush, running toward him from the direction of the still. One of these men, the appellant, he arrested, but the other man escaped by dropping over the point into a hollow.

Appellant was about ten steps from the still when first he came into Pitchford's view. Appellant, when arrested, complained of his hard luck, said that at least he would get his board and clothes and inquired whether a certain person had informed the officers. He refused to tell the name of his escaped companion. After the officers arrested appellant, they went to the still and found it in "full action" as the sheriff said. Fire was under the still, moonshine was running from it into a bucket, and there were several vessels filled with the liquor. One or two of the mash barrels which had been full when last the officers were there were empty. The officers also testified that but one man escaped, and that from the positions which they took about the hill on which the still stood, it was impossible for a third man to have slipped through their converging lines, unnoticed.

Appellant was prosecuted in this case under the name of Clifford Pendergraft. The State offered in evidence the record of the Circuit Court of Ozark County showing that Clifford Pender on May 19, 1925, pleaded guilty to the charge of manufacturing moonshine and was sentenced to serve two years in the State penitentiary. The State also offered in evidence a certified copy of the records of the penitentiary showing that Clifford Pender served that term. Walter Endicott, who was sheriff of Ozark County in 1925, identified appellant here as the person named in the records offered in evidence of appellant's prior conviction.

Appellant's wife, mother and sister testified that he was at home during the morning of the day on which he was arrested, and that he departed shortly after noon to seek work at a stave factory. Appellant testifying in his own behalf limited his direct examination to denials that he owned the still or had any interest in it or had manufactured whiskey with it. On cross-examination he testified that he was not at any time nearer than twenty steps to the still. He also testified that he left his home about noontime to seek work at a stave factory which was east of his place, but that he changed his mind and took a short cut toward a road leading to a country store, south of his home. The still was south by east. He was examined covering the distances of the stave factory, the still and the store from his home. The State in rebuttal showed that the still was only half a mile from appellant's house.

I. The trial court did not err in overruling appellant's demurrers. It is not the law that men must be seen doing actual work of operating a still in order that a conviction upon a charge of unlawful manufacture of moonshine may stand. In the instant case it cannot be said that the State merely proved the inactive, non-participating presence of appellant. The sheriff and his two deputies left the nonoperating still early in the morning after an all-night vigil. When they left, there was no fire under the...