State v. Pike

• Decision Date: 03 May 1926
• Docket Number: No. 15651.,15651.
• Citation: 282 S.W. 1043
• Parties: STATE v. PIKE.
• Court: Missouri Court of Appeals

282 S.W. 1043

STATE v. PIKE.

No. 15651.

Kansas City Court of Appeals. Missouri.

May 3, 1926.

Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.

"Not to be officially published."

Edd Pike was convicted of selling intoxicating liquor, and he appeals. Affirmed.

E. A. Farris, of Richmond, and Hugh C. Brady, of Kansas City, for appellant.

A. Moody Mansur, of Richmond, for the State.

BLAND, J.

Defendant was convicted of selling intoxicating liquor under section 6588, R. S. 1919, as amended (Laws of 1921, p. 414), and his punishment assessed at imprisonment in the county jail for one year and a fine of $500. He has appealed.

The indictment charges that:

Defendant "did then and there willfully and unlawfully sell intoxicating liquor, to wit, one quart of wine, the sale of said intoxicating liquor being then and there unlawful and prohibited, contrary to the form of the statute in such cases made and provided, against the peace and dignity of the state."

The indictment was in the language of the statute and was therefore sufficient, although it did not charge that the liquor contained one-half of 1 per cent. of alcohol by volume. State v. Goetz (Mo. App.) 255 S. W. 345; State v. Jenkins (Mo. App.) 255 S. W. 338; State v. Stanley (Mo. App.) 273 S. W. 139; State v. Fenley (Mo. Sup.) 275 S. W. 36; State v. Feltner, 278 S. W. 825; State v. Sparks (Mo. App.) 278 S. W. 1073; State v. Stewart, 216 Mo. App. 644, 271 S. W. 875.

It is claimed that there is no proof that the liquid sold contained one-half of 1 per cent. of alcohol by volume (see section 6602, R. S. 1919), and that defendant's demurrer to the evidence should have been sustained. The state's witness Leroy S. Fields testified that he was 18 years of age; that he lived in Richmond; that he was down town at the Richmond Drug Store about 7:30 or a quarter of 8 p. m. on April 10, 1925, from which place he "called up" defendant's house; that a voice that he recognized to be that of a woman answered, and he asked if wine could be procured; that the person replied that it could; that the witness, together with Albert Clark and Ed Barnard, drove to defendant's house, and either a woman or a man came to the door, and the witness asked "about the wine"; that he was told that the wine was not there but could be secured; that the witness suggested that it be brought down town to the Farris Theater; that in about 15 minutes defendant drove up to the Farris Theater and got out of his car and delivered to the witness a quart bottle of wine, for which the witness paid $1.50; that the witness took one drink of the wine and it made him "a little dizzy." He testified that he had drunk wine before, and that this beverage was wine. On cross-examination the witness testified: That it was dark, and he could not tell the color of the beverage, but that "it tasted rather bitter. Q. Do you know what it was? You called for wine, but do you know it was wine? A. It tasted like wine." That he could not say that it made him drunk, but that it made him "dizzy." "Q. Was it intoxicating? A. I should say it was. Q. What you drunk, you didn't get drunk? A. I know; but X didn't drink enough."

The witness Ed Barnard testified that he "took two good drinks" of the wine, and it made him "pretty dizzy"; that he had drunk wine before, and was sure that the beverage was wine; that it tasted "kind of sour." The witness Albert Clark testified that he was 19 years of age; that he drank some of the wine, Nut that he "didn't drink so much"; that it had no "effect" on him; that he knew what wine tasted like; and that what he drank that night was wine, but he did not know what kind of wine it was. The witness, George Crowley, testified that he was 17 years "f age; that he drank from the bottle of wine, and that "it had not quite a pint in it, and I drank all but about a teacup full, I guess"; that it had no "effect" upon him "until about 20 minutes, and then I got to feeling kind of good. It made me a little bit dizzy, and that's about all. It made me kind of sick after I ate some refreshments they had."

There was no other testimony except that of the defendant, who testified in his own behalf. He stated that the boys attempted to purchase some wine from him, but he refused to sell it to them, saying that he did not sell wine or whisky, and that "from the way you are staggering, it looks like you have had enough." On cross-examination he testified that he was convicted in the federal court on April 8, 1920, of "having whisky on me," and that about May 9, 1922, he was convicted "for possession of whisky." On redirect examination he was asked, "You never was convicted of selling whisky? A. Never was; can't get enough for myself, let alone any one else."

Among other instructions given on behalf of the state appears instruction No. 2, which reads as follows:

"The court instructs the jury that if you find and believe from the evidence beyond a reasonable doubt that the defendant, Edd Pike, willfully and unlawfully sold to the witness, Leroy Fields, in Ray county, Mo., any quantity of wine at any time within one year next before May 29, 1925, you will find the defendant guilty as charged in the indictment, and assess his punishment at imprisonment in the county jail for a period of not more than one year nor less than 30 days, or by a fine of not more than $1,000 nor less than $200, or by both such fine and imprisonment."

At the request of the defendant the court gave the following instruction:

"The court instructs the jury that before you can convict the defendant of the offense charged herein you must find and believe that the defendant sold, to Leroy Fields, liquor,...