State v. Sherrell

• Decision Date: 13 November 1917
• Docket Number: No. 2121.,2121.
• Citation: State v. Sherrell, 198 S.W. 464 (Mo. App. 1917)
• Parties: STATE v. SHERRELL.
• Court: Missouri Court of Appeals

198 S.W. 464

STATE v.SHERRELL.

No. 2121.

Springfield Court of Appeals. Missouri.

November 13, 1917.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Tom Sherrell was convicted of selling intoxicating liquor in dry territory, and he appeals.Reversed and remanded.

E. H. Farnsworth, of Mountain Grove, and Lamar & Lamar, of Houston, for appellant.

FARRINGTON, J.

The defendant was convicted of violating the local option law in force in the town of Mountain Grove.The only question on this appeal goes to the refusal of the circuit court to grant defendant a continuance.The granting or refusal of a continuance rests largely in the sound judicial discretion of the trial judge, and this will not be interfered with by an appellate court unless it becomes very doubtful whether justice has been accorded the defendant in the course followed.We will set out the case made by the state, and the defense offered together with the evidence which defendant says would have been given by witnesses if present and without which he claimed he could not safely proceed to trial.

In this connection it may be observed that a defendant seeking a continuance on account of the absence of witnesses must make a showing of diligence in attempting to secure their attendance or give some good reason for a failure on his part to comply with what might be termed due diligence.

The state's case: Defendant was prosecuted for selling a half pint of whisky to one Wm. Bullock.The state introduced but one witness, Bullock, who swore that on March 5, 1917, he bought a half pint of whisky from the defendant at defendant's blacksmith shop in the town of Mountain Grove in this state, and that he became "very drunk."This is substantial evidence upon which to base the conviction.It was further shown that the defendant, some 15 years ago, was convicted of violating the local option law by selling intoxicants.

The defendant's case: On cross-examination of Bullock he admitted that when he was arrested by the city marshal and put in jail he had drunk about one-third of the contents of a half pint bottle of whisky; that he was, according to the marshal, one of the drunkest men the latter had ever seen; that he told the marshal he had procured this whisky from some men over in the tie yard at Mountain Grove, some 200 or 300 yards from defendant's blacksmith shop.The bottle of whisky was taken from Bullock by the marshal, and a night's repose in the "cooler" sobered him.The next morning the prosecuting attorney visited him, and, being asked where he procured the whisky, told the same story.Bullock testified that he came to that community from Kansas City, saying he was an air inspector there, and resided there 4 years, but had moved to a farm near Mountain Grove, and was practically a stranger in the community, and admitted he was a stranger to Sherrell, the defendant.He had brought with him from Kansas City his two small boys, leaving his wife and two daughters there.These boys were in Mountain Grove with a wagon the day on which he became intoxicated.The boys were cared for by some citizens of the town and kept overnight.It was intimated to Bullock the next day that he would be put in jail, and that his story that he obtained this whisky from two men in the tie yard was not believed.He then told the prosecuting attorney he bought the whisky from Sherrell at the latter's blacksmith shop, and that Sherrell brought the liquor to a urinal and sold it to him.

Defendant's first witness was Joe Walker, who testified that he was in the hardware business; that he had known defendant for 15 years, and that defendant bore a good reputation in that community for honesty and truthfulness; that he had heard that Sherrell had been convicted of selling intoxicating liquors some 15 years ago; that on the day Bullock was arrested Sherrell came to his store for some horseshoes about 4 o'clock in the afternoon; that Bullock at that time had already been arrested, and that he(Walker) told Sherrell that a man had been arrested for drunkenness.

The next witness for the defendant was the city marshal, who described the drunken condition in which he found Bullock, and that the arrest occurred between 3 and 4 o'clock in the afternoon; that he took from Bullock a half pint bottle, which was about two-thirds full, and that Bullock was about as drunk a man as he had ever seen; that Bullock at that time stated he did not know where he got the liquor; that he then said he got it over in the tie yard; that he had gotten a couple of drinks over there from a man whom he did not know, who told him if he wanted some whisky he had some to sell, and that he did buy a half pint from that man.The marshal stated that he was acquainted with the general reputation of Sherrell at Mountain Grove for honesty, industry, sobriety, and for being a peaceable, law-abiding citizen, and had never heard anything to the contrary.He said he had examined the urinal in defendant's shop, and that there was no place in there where whisky could be concealed.He also had heard that years before Sherrell had been convicted of violating the local option law.He testified that at the time he arrested Bullock and put him in jail he was drunk and crying; that the next morning he asked Bullock who sold him the whisky, who replied that he did not know but that he bought it down in the blacksmith shop, and that he identified Sherrell as the salesman.He stated that when Bullock had sobered up, something was said...