State v. Randolph
| Decision Date | 05 June 1931 |
| Docket Number | 30982 |
| Citation | 39 S.W.2d 769 |
| Parties | STATE v. RANDOLPH |
| Court | Missouri Supreme Court |
Spradling & Dalton, of Cape Girardeau, for appellant.
Stratton Shartel, Atty. Gen., and Edward G. Robison, Asst. Atty. Gen for the State.
The prosecuting attorney of Cape Girardeau county on January 9, 1930, filed in the circuit court of that county an amended information against the defendant, charging her with the unlawful and felonious sale of hootch, moonshine, corn whisky. A trial was had on the same day and the defendant was found guilty and her punishment was assessed by the jury at imprisonment in the penitentiary for a term of two years. From the sentence and judgment the defendant appeals.
On behalf of the state, the testimony shows that about 11 o'clock on the night of October 19, 1929, Earl Robinson, Dale Crites, and Ray Seabaugh, about twenty, nineteen, and eighteen years of age, respectively, drove from a country dance into the city of Cape Girardeau and stopped in front of the home of the defendant. Charles Schweer, captain of police, and J. E. Crafton, a policeman of Cape Girardeau, who saw the car of the young men stop in front of the defendant's house, brought their car to a stand close by. Seabaugh and Crites went to the front door of the house and knocked. A woman garbed in night apparel came to the door, and the young man said to her that they wanted a drink. They also inquired the price, and she stated $ 1 a pint. The woman then 'hollered' to some one in the house and told the youths to go to the back door. They went and found there a man who gave them two bottles containing liquid. They handed him $ 2 and returned to the automobile in which their companion, Earl Robinson, had remained. They drove back along the Bloomfield road, over which they had come, and they were followed by the police officers. At a point near the limits of Cape Girardeau, the police officers ordered the youths to halt, and they did so. At about the same time Seabaugh and Crites broke the pint bottles which they had, and the contents spilled upon their clothes and flowed into the car and out upon the running board. Robinson testified that the contents of the bottle smelled like moonshine. Seabaugh said that it smelled like alcohol. Crites described the stuff as moonshine and alcohol mixed. Officer Crafton called it moonshine whisky and Captain Schweer termed it moonshine liquor. The police officers arrested the three young men and took them to the police station in Cape Girardeau. Robinson, Seabaugh, and Crites testified as witnesses for the state. Robinson, who remained in the automobile, did not see the person who came to the door and did not know whether the defendant was home that night. Seabaugh and Crites did not know the defendant. They did not know who came to the door, and declined to identify the defendant as the person who answered the knock. The police officers, Schweer and Crafton, testified that they had known the defendant for some time prior to the night in question. They identified her as the person who came to the door by her voice. They did not recognize her by the view which they had of her as she did not come out, but stood in the doorway under the porch.
The defendant, on her own behalf, testified that on the night of the purported sale she was at the home of her stepfather, D. H. Harper, about seven miles from Cape Girardeau, and that she did not return until the following day. In this testimony she was supported by her stepfather and also by her sister Bonnie Clark. The latter also testified that on the night when the young men called she was stopping at the home of the defendant, together with Mrs. Randolph's son and her own child. Frank Johnson and his son had a room in the rear of the house. Mrs. Clark stated that she answered the call at the door; that she supposed that the young men desired to see Frank Johnson and that she told them to go to the back of the house. She said that she did not know what they wanted. Defendant on cross-examination admitted that in 1927 she was convicted in the circuit court of Cape Girardeau of the transportation of hootch, moonshine, and corn whisky. Frank Johnson did not testify at the trial, and one of the grounds of the motion for a new trial was newly discovered evidence. The motion set up that since the trial Frank Johnson had been located; that immediately after the filing of the information against the defendant, Frank Johnson left for parts unknown and could not be found in time for the trial, and that Frank Johnson would testify that he sold and delivered the whisky to the young men; that it belonged to him; that he received and retained the money paid for it; that defendant knew nothing about the transaction, and was not at home at the time. This was supported by an affidavit of Johnson to which the state filed counter affidavits tending to show that Johnson immediately before the trial was seen a number of times in Cape Girardeau, and that he could have been served as a witness. While a motion for a new trial was pending, the defendant offered in support of the motion an information of the prosecuting attorney against Frank Johnson charging the sale of hootch, moonshine, and corn whisky as charged against the defendant in this case. Subsequently while the appeal was pending in this court, defendant filed her exhibits showing that Frank Johnson on February 26, 1930, was tried upon this charge, and that the sale of which he was accused was the same sale of which the defendant previously had been convicted. Johnson was found guilty, and his punishment was fixed at three months in jail, and a fine of $ 200.
I. Defendant made numerous assignments of error. We will first consider the complaint that the court, over the objection of defendant, permitted the prosecuting attorney to inquire of the state's witness, Ray Seabaugh, whether he had said in a written statement that the woman who came to the door and opened it, and to whom he and the other state's witness, Crites, spoke, was the defendant Birdie Randolph.
After Ray Seabaugh had testified upon direct examination that the defendant did not look like the woman who came to the door, the prosecuting attorney inquired of him if he did not say in a written statement made at the police station, while he was under arrest, that he recognized the person as the defendant Birdie Randolph. He answered that he made a written statement, but that he did not say in it that he recognized the woman as the defendant. The examination of the witness then proceeded: ''
Upon objection being made by defendant, the court ruled that it would let the witness answer whether he made a statement of that kind. In response to many questions concerning the statement, the witness declared that the signature was not his handwriting; that he made the statement except that part of it identifying the defendant, which part he repudiated. The quoted question was not repeated, and the court made no further ruling upon the objection to it. Several other witnesses were examined by the state touching matters not relating to Seabaugh's statement. Then James A. Barks mayor of Cape Girardeau, testified that he was at the station while the boys were under arrest; that he heard them make oral statements, saw them make written statements, and heard these statements read to them. He identified the signature of Ray Seabaugh to the statement. Police Captain Schweer next testified about the liquor transaction at defendant's house, and the prosecuting attorney closed the state's case with an offer to read in evidence that part of Seabaugh's purported statement which the prosecuting attorney had incorporated in the question addressed to Seabaugh. The defendant was not present at the time and place of the statements. The court sustained an objection to the offer, for the reason that it was for the purpose of impeaching the state's own witness. The vice of this whole proceeding is that it was an effective impeachment by the state of its own witness, Seabaugh. And this vice was not cured by the ultimate ruling of the court, sustaining the objection of the defendant to the offer of the state to read in evidence that part of Seabaugh's purported statement which the prosecuting attorney already had brought to the notice of the jury by his question to Seabaugh. In the case of State v. Patton, 255 Mo. 245, 164 S.W. 223, defendant was convicted of keeping a gambling device. The testimony of several of the state's witnesses did not come up to the expectations of the prosecuting attorney, and he undertook to refresh their memory by including in questions parts of their examination before the grand jury. The court overruled objections to this part of the examination. And the witnesses, by their recollection of their testimony before the grand jury, responded readily to the refreshing process. It is to be remembered that, in the instant case, the witness Seabaugh repudiated his signature to the written statement, and testified at the trial that he did not say that he recognized the defendant. This last circumstance gives force to the following passage from the opinion of this court in State v. Patton, 255 Mo. 245, loc. cit. 257, 164 S.W. 223, 226: ...
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