State v. Salter

• Decision Date: 03 December 1923
• Docket Number: No. 14700.,14700.
• Citation: 256 S.W. 1068
• Parties: STATE v. SALTER
• Court: Missouri Court of Appeals

256 S.W. 1068

STATE v. SALTER

No. 14700.

Kansas City Court of Appeals, Missouri.

December 3, 1923.

Rehearing Denied December 31, 1923.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

"Not to be officially published."

A. C. Salter was convicted of selling intoxicating liquor, and appeals. Affirmed. See, also, 256 S. W. 1070.

Roy McKittrick, of Salisbury, for appellant.

Clarence Brummall, Pros. Atty., of Salisbury, and John D. Taylor, Asst. Atty. Gen., for the State.

ARNOLD, J.

This is an appeal from the verdict of a jury in the circuit court of Chariton county, Mo., wherein defendant was found guilty of selling two drinks of intoxicating liquor, contrary to the prohibition law. The facts in the case are as follows:

On or about September 15, 1922, defendant, A. C. Salter, was operating in Brunswick, Chariton county, Mo., what is known as the Depot Hotel, immediately across the street, north of the station of the Wabash Railroad. East of the hotel and across an alley therefrom was a small private garage used by defendant. On or about the date above mentioned the sheriff of Chariton county directed his deputy, one J. W. Taylor, and also one Walter Gann, not a deputy, to go to Brunswick to investigate charges that Salter was selling intoxicating liquor in violation of law. Taylor and Gann accordingly went to Brunswick and into the hotel operated by Salter. They told Salter they wanted something to drink, whereupon Salter took them to the private garage, referred to above, and the three entered from the rear thereof. Salter produced two glasses and a quart bottle containing intoxicating liquor charged to have been whisky, poured out a drink in each glass, and handed a glass to each Taylor and Gann, who drank the same, and for which Taylor paid the total sum of 50 cents.

After the purchase of the drinks of whisky, and while the three men were standing together, Gann asked if he could buy a bottle of whisky. Upon Salter's assent to such a sale, Gann emptied a soda pop bottle of the soda pop remaining in it, and Salter then filled said bottle with whisky from the same receptacle from which he had sold the two drinks to Taylor and Gann. Gann thereupon paid defendant $2 for the bottle of whisky so purchased by him. After leaving the garage, Gann gave the bottle of whisky so purchased into the custody of Deputy Sheriff Taylor, where it remained until produced at the trial of defendant.

At the September term of the circuit court of Chariton county, 1922, an indictment was returned against defendant, charging the sale of two drinks of whisky for 50 cents. Defendant went to trial upon a plea of not guilty, after a change of venue from Salisbury to Keytesville, in said county of Chariton. The jury returned a verdict of guilty, and defendant's punishment was fixed at four months' imprisonment in the county jail and a fine of $500. After motions for new trial and in arrest were filed, and by the court overruled, judgment was entered of record in accordance with the verdict, and defendant was sentenced. From said judgment and sentence, defendant appeals.

During the progress of the trial and after the jury had been impaneled, counsel for defendant filed a motion to quash the regular panel, also the jurors John Shannon, U. G. Mason. Clarence Mills, and Bill Woodward, for the reason that A. S. Wilks, the sheriff, had selected and summoned said jurors, and that the sheriff's deputy, J. W. Taylor, was the prosecuting witness and interested in the cause. The court heard testimony for and against the motion, whereupon the motion to quash was overruled and the trial proceeded.

This appeal is bottomed upon four assignments of error, as follows: That the court erred (1) in overruling defendant's motion to quash the panel; (2) in admitting evidence of other separate and distinct crimes; (3) in giving certain instructions for the state and refusing certain instructions for defendant; and (4) in overruling defendant's motion to require the state to elect at the close of the state's case.

The first charge of error is directed to the ruling of the court as to admission of evidence that defendant sold the bottle of whisky to Gann; it being charged in the indictment in this case only that he sold two drinks of whisky to Deputy Sheriff Taylor. It is a general rule of law that:

"Upon the trial of a party accused, evidence to show that defendant has committed other crimes than those charged in the indictment is not admissible; the exception to the rule being that such evidence is to be received, though it may also tend to prove the commission of another separate and distinct offense, only when it tends to prove the particular crime charged." State v. White (Mo. App.) 223 S. W. 683.

To this rule there can be no valid objection, and we do not understand the state refutes it. It remains, therefore, to consider whether the facts here presented bring the case within the exception enunciated in the White Case. The evidence shows that two drinks of...