State v. Salter

• Decision Date: 03 December 1923
• Docket Number: No. 14701.,14701.
• Citation: 256 S.W. 1070
• Parties: STATE v. SALTER.
• Court: Missouri Court of Appeals

256 S.W. 1070

STATE v. SALTER.

No. 14701.

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 the sale of half a pint of intoxicating liquor, and appeals. Affirmed.

See, also, 256 S. W. 1068.

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 a verdict of guilty in the circuit court of Chariton county, Mo., wherein defendant was charged with the sale of half a pint of intoxicating liquor to one Walter Gann. An indictment was returned to the September term, 1922, of the said court, and the trial was in November of that year, resulting as above indicated.

The facts shown by the record are that defendant was operating the Depot Hotel, immediately north of, and across the street from, the Wabash Railroad station in the city of Brunswick, Chariton county, Mo. Closely adjacent thereto was a private garage used by defendant. On or about September 15, 1922, the sheriff of Chariton county sent J. W. Taylor, one of his deputies, and Walter Gann, to Brunswick to investigate a report that whisky could be bought at defendant's place. They went to said hotel, and Gann, who was acquainted with defendant and formerly worked for him, told defendant that he and Taylor wanted something to drink. They were taken by defendant into his private garage, where, from a box, he produced a bottle of whisky. Gann brought forth a pop bottle, which defendant then filled from the bottle he had produced, and for which Gann paid defendant $1.50. Just before the sale of the half pint of whisky above mentioned, and during the same interview, Deputy Sheriff Taylor and Gann then and there drank two drinks of whisky, which Deputy Sheriff Taylor had purchased from defendant for 50 cents; the two drinks and the half pint coming from the same bottle, which defendant had produced.

Defendant was indicted and convicted of selling the two drinks above referred to, and at the same term of the court, and on the day following the first conviction, he was tried and found guilty on the charge of selling the half pint to Gann, on practically the same evidence and on the same state of facts.

It is first urged that the court erred in overruling defendant's request, at the close of all the evidence, to direct a verdict for defendant. The basis of the request was that, as defendant, on the day previous, had been convicted in the same court of selling the two drinks of whisky to Deputy Sheriff Taylor, and that evidence was admitted in said trial containing statements relative to the sale of the half pint involved by this transaction. It is now charged that, by reason of the fact that, testimony of the two sales, to wit, the two drinks and the half pint, having been admitted at the former trial, there should have been a directed verdict for defendant, because he had thereby been twice placed in jeopardy for the same offense. In the appeal in the case of the sale of the two drinks (State v. Salter [No. 14700] 256 S. W. 1068, decided by this court at this term and not yet [officially] published), we hold the introduction of the evidence as to the sale of the half pint was merely corroborative of the fact that intoxicating liquor had been sold; the liquor composing the two drinks and the half pint having come from the same receptacle and the contents of the bottle having been analyzed and found to be whisky 92 proof and 46 per cent. alcohol by volume.

It is admitted section 4007, R. S. 1919, provides that former jeopardy may be proved under a plea of not guilty. It is contended by the state that it is the proper practice to raise the issue by special plea in bar, because such a plea may be tried upon the issue raised by the state's reply putting the plea in issue, or by demurrer if the sufficiency of the plea is questioned. If the situation involves a question of fact, it is for the jury; if a question of law, it is for the court.

There was no plea in bar filed herein. The question seems to have been raised for the first time in cross-examination of the first witness for the state, to wit, Deputy Sheriff Taylor, as follows:

"Q. So, Mr. Taylor, in the case of State of Missouri v. A. C. Salter, tried yesterday, indictment No. 1, is that the same defendant on trial now? A. Yes, sir.

"Q. The same defendant? A. Yes, sir.

"Q. And did you on yesterday's trial and in his case testify to the same transaction that you are testifying to now? A. Yes, sir.

"Q. And all of the facts that you testified to to-day you testified to yesterday in the trial of State v. Salter? A. Yes, sir.

"Q. I will get you to examine this; that is your name? A. Yes, sir.

"Q. And your name and Walter Gann's appeared and are on the indictment that the defendant Was tried on yesterday? A. Yes, sir.

"Q. And what you testified to a moment ago with reference to two drinks of whisky and this bottle of whisky were all one and the same transaction? A. Yes, sir."

It is seen, therefore, that the question of former jeopardy was in issue under the plea of not guilty, though this may not be the usual or best way in which such a question is presented. Yet it was the way chosen by defendant, and in this course he is supported by the statute. Defendant's position is that this testimony, especially the last question and answer above quoted, is conclusive as to defendant's having been twice put in jeopardy for the same offense. We do not so regard it. The question and answer, viewed in the light most favorable to defendant, merely reflect the opinion of the witness. The circumstances of the two alleged sales were detailed in the testimony of this witness and others, and such circumstances must...