State v. Sheeler

• Decision Date: 25 May 1928
• Docket Number: No. 28228.,28228.
• Citation: 7 S.W.2d 340
• Parties: THE STATE v. DAVID SHEELER, Appellant.
• Court: Missouri Supreme Court

7 S.W.2d 340

THE STATE v. DAVID SHEELER, Appellant.

No. 28228.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Audrain Circuit Court. — Hon. Emil Roehrig, Judge.

AFFIRMED.

Clarence A. Barnes for appellant.

(1) The question of intent is not material in a prosecution for the offense of selling moonshine, hootch or corn whiskey; because intent is not an element of the crime charged, requiring proof. State v. Presler, 290 S.W. 142; State v. Seidler, 267 S.W. 424; State v. Fenley, 309 Mo. 520. (2) Proof of extraneous crimes which do not go to show intent, identity, or system, and are not a part of the res gestae, are not admissible. Rupinsky v. United States, 4 Fed. (2d) 17; Berry v. State, 255 S.W. 739. Identity, system, and res gestae, are not involved in this case, and when proof of intent is not a necessary element to be proven, other acts are not admissible. State v. Saunders, 288 Mo. 640; State v. Austin, 234 S.W. 802; State v. Kolafa, 291 Mo. 640; State v. Barker, 296 Mo. 51; State v. Hedrick, 296 S.W. 142; State v. Kurtz, 295 S.W. 747; State v. Smith, 261 S.W. 696; State v. Shobe, 268 S.W. 81; State v. Sparks, 269 S.W. 403; State v. Aurentz, 263 S.W. 178; State v. Fenley, 309 Mo. 520. (3) Evidence tending to prove another offense than that changed, is admissible only when directly tending to prove particular crime charged. State v. Calbert, 282 S.W. 106; State v. Gruber, 285 S.W. 426; State v. Fenley, 275 S.W. 36. Evidence of separate offenses in cases of this nature has always been held erroneous and harmful. State v. Kurtz, 295 S.W. 747; State v. Widick, 292 S.W. 52; State v. Presler, 290 S.W. 142. (4) In a prosecution for the sale of intoxicating liquor, it was immaterial whether or not accused had liquor in his possession at the time and place laid in the information, possession of intoxicating liquor and the sale thereof being separate and distinct offenses. Beyer v. United States, 282 Fed. 225; Webb v. State, 277 S.W. 697; Rosencrance v. State, 239 Pac. 952. (5) The court erred in refusing to instruct the jury to return a verdict acquitting the defendant. There never was a plainer case of entrapment than the case at bar. When the question of intent is not in the case, then the fact that the offense originated with the officers of the State made out a perfect case of entrapment, and it is against public policy to sustain a conviction where the officers of the law have incited and induced its commission. Luterman v. United States, 281 Fed. 374; United States v. Certain Quantities of Intoxicating Liquors, 290 Fed. 824. (6) In this State, so far as we are able to find, there is no case wherein for the first offense of illegal sale of liquor or on a single sale of liquor, a defendant has been convicted and his punishment fixed at five years in the penitentiary. This clause of the Constitution of Missouri, intended not only to operate as a limitation upon the Legislature, but also to give direction to the courts, so that where the punishment in the State rarely ever exceeded a sentence of two years in the penitentiary, one located in a different locality receiving excessive punishment of five years, the appellate courts, if not the trial court, can equalize that punishment over the State by remanding the case for a new trial, where the punishment inflicted is far in excess of the punishment usually inflicted by juries in all the other localities, to the end that it may not be cruel and unusual. (7) The verdict of the jury is the result of bias, passion and prejudice on the part of the jury against defendant. Each case necessarily stands alone, but it is evident from a reading of the record that such an unheard of and outrageous verdict is in and of itself evidence of bias, passion and prejudice of the jury. We think that it is in part due to the fact that evidence of other offenses, to-wit, the possession of the empty bottles and a number of bottles filled with liquor obtained by the search warrant following the alleged sale by the defendant to Adams, may have been in part responsible for it.

North T. Gentry, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.

(1) It is not the law in this State that if it is shown that a defendant was entrapped into the violation of the prohibition law, he must be acquitted. State v. Broaddus, 289 S.W. 795. (2) The appellant contends that the verdict of five years in the penitentiary for the sale of intoxicating liquor is cruel and unusual and in violation of the Constitution, and indicates that the verdict was the result of passion and prejudice. There is no merit in appellant's position. State v. Alexander, 285 S.W. 985. (3) The respondent concedes that as a general rule evidence of other offenses is not admissible. 16 C.J. 586, sec. 1132. But there are some well-defined exceptions to the foregoing rule. "The general rule does not apply when the evidence of another crime tends directly to prove defendant's guilt of the crime charged." 16 C.J. 588, sec. 1134. The search of the defendant's house by the officers took place immediately after the sale of the whiskey by the defendant; and as a result of that search, nine bottles of whiskey and a large quantity of empty bottles were found on the premises. While the search was being made the defendant admitted that he had previously had a jug of whiskey in his possession at that place. This evidence was competent although it may have proven the defendant guilty of another crime. 16 C.J. 606, sec. 1174; State v. White, 289 S.W. 954.

BLAIR, J.

Appellant was convicted in the Circuit Court of Audrain County of the felony of selling intoxicating liquor, to-wit, "hootch, moonshine and corn whiskey," as defined by Section 21, Laws 1923, page 242. The jury assessed his punishment at imprisonment in the State Penitentiary for a term of five years. From the judgment entered on the verdict of the jury, appellant was granted an appeal to this court.

At our last October term, an opinion was handed down reversing the judgment and remanding the cause on account of the admission of certain evidence. Upon motion of the State a rehearing was granted. The case has been reargued and resubmitted at the present term. The facts are fully and fairly set out in our former opinion, from which we quote as follows:

"The prosecuting attorney observed one George Adams, known to be an habitual user of intoxicating liquor, standing near his automobile in the city of Mexico. Thereupon the prosecuting attorney and the sheriff, taking Adams with them, drove to a point in the city of Mexico close to the residence of defendant. The prosecuting attorney thereupon handed Adams two one-dollar bills. Adams alighted from the machine, going in the direction of defendant's residence, the sheriff following him and observing Adams enter upon the premises, but from his position he was unable to see him enter defendant's house. Shortly thereafter the sheriff saw Adams leave defendant's house, meeting him on the street, Adams showing him the impression of a bottle inside his shirt. The sheriff and Adams returned by different routes to the automobile stationed a block or so away, Adams delivering the pint bottle half full of whiskey to the prosecuting attorney. The incident occurred about seven-thirty P.M. on September 18, 1926. Upon obtaining the bottle of whiskey from Adams the prosecuting attorney immediately went to his office and procured a search warrant to search defendant's house, which was executed by the sheriff, accompanied by two policemen, where, after a continued search, nine bottles of whiskey were found in the basement in a clapboard partition constituting a side of the coal bin. While the officers were making the search, but before anything was found, the defendant remarked, `You are just out of luck. I did have some whiskey here in a jug, but it is all gone now.' Upon the arrest of defendant and while detained in the waiting room at the jail, defendant, upon observing Adams, said to him, `So this is your game, is it?' Adams admitted that he had previously been convicted of issuing a check without funds in the bank to meet it. He also admitted he was in the habit of drinking large quantities of whiskey.

"The defendant refused to take the stand, but offered several witnesses who testified that the general reputation of Adams for truth and veracity was bad."

There is no doubt that the testimony of Adams that he purchased the liquor from appellant, supported by the testimony of the sheriff tending to corroborate Adams as to entering and leaving appellant's premises, together with proof of the character of the liquor purchased, was sufficient to authorize submission of the case to the jury. Appellant insists that the only proof of the sale rests in testimony procured by the entrapment of appellant and that this testimony was improperly admitted and that, without such testimony, no case was made for the jury. We are satisfied with our former opinion on this point and quote from it as follows:

"The evidence in this regard goes no further than showing that the prosecuting attorney accosted the witness, drove him near defendant's residence and gave him two one-dollar bills, Adams immediately going to defendant's home and returning with a bottle of moonshine whiskey. If entrapment may ever be said to constitute a defense in this State, the facts here developed are not appropriate to such a defense. It is evident from the reading of the record that the purpose of the prosecuting attorney was not to solicit the commission of an offense, but it was to ascertain if defendant was engaged in vending whiskey. Adams, acting as a decoy, merely furnished the opportunity for the commission of the offense. The officers did not actively or by ruse induce defendant to commit an offense, nor did they have anything to do with the furnishing of whiskey by defendant. The record contains no evidence that defendant was...