State v. Pigg

• Decision Date: 29 January 1923
• Docket Number: No. 14553.,14553.
• Citation: 247 S.W. 257
• Parties: STATE v. PIGG.
• Court: Missouri Court of Appeals

247 S.W. 257

STATE v. PIGG.

No. 14553.

Kansas City Court of Appeals, Missouri.

January 29, 1923.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be officially published."

Edd Pigg was convicted of selling, giving away, and transporting intoxicating liquor, and he appeals. Affirmed.

Don C. Carter, of Sturgeon, and E. C. Anderson, of Columbia, for appellant.

Ruby M. Hulen, of Columbia, for the State.

TRIMBLE, P. J.

Defendant was prosecuted and convicted upon all four counts of an information wherein he was charged in the first count with selling, in the second with giving away, in the third with transporting, and in the fourth with transporting, liquor unlawfully. His punishment was assessed by the jury at a fine of $100 and 30 days in jail for the offense charged in the first count and a fine of $100 each for the offenses charged in the other three counts. He has duly appealed.

The first point made is that the defendant's demurrers, to the evidence at the close of the state's evidence and at the close of all the evidence should have been sustained. These were general and were not directed to any particular count, being merely a requested instruction telling the jury that "under the law and the evidence in this case you must find the defendant not guilty." But defendant in its brief now concedes that there was sufficient evidence to take two of the counts to the jury. In such situation, it would seem that before the court could be said to have erred in overruling a demurrer, it should specify the counts as to which defendant claims there is not sufficient evidence to sustain. It is not required of the court to pick out the particular count to which a demurrer might properly apply. Torrance v. Pryor (Mo. Sup.) 210 S. W. 430, 433.

However, we need not base our decision of this point solely on the above ground, as we are satisfied there was sufficient evidence to submit the case to the jury on the two counts challenged.

The evidence is that defendant sought out the state's prosecuting witness and gave him a drink of intoxicating liquor as a sample of what defendant had. The defendant said to the prosecuting witness, "You can take some, or try some, of it." Thereupon prosecuting witness sampled some of it and said he "would love to have some of it" if the price suited, and then defendant said he "thought something about $2.50 would be the price," and then witness told him he would give him $2.50 for a quart of it.

About two days later, defendant again sought Chandler, the prosecuting witness, and told the latter, "There is a quart of whisky down at your barn," and told him it was in the back stall of the manger, and that Chandler would owe $2.50. There were 15 stalls in the livery barn, and Chandler found the whisky there as directed. We think this was sufficient evidence from which the jury could find that the defendant transported: and sold intoxicating liquor unlawfully. State v. Melton, 130 Mo. App. 262, 266, 109 S. W. 858; 23 Cyc. 180, 182.

It is urged that reversible error was committed by the court in allowing the prosecuting...