State v. Shields
| Decision Date | 03 March 1933 |
| Docket Number | 32322 |
| Citation | 58 S.W.2d 297,332 Mo. 280 |
| Parties | The State v. Sam Shields, Appellant |
| Court | Missouri Supreme Court |
Appeal from Shelby Circuit Court; Hon. Vernon L. Drain Judge.
Reversed and the defendant discharged.
H A. Wright and W. L. Hamrick for appellant.
(1) The evidence wholly fails to show that what defendant sold to Clemm, if anything, was intoxicating liquor. Clemm's evidence, Bill of Exceptions, page 11; Sheriff Gaines' evidence, Bill of Exceptions, pp. 47, 48; State v Weagley, 240 S.W. 822; State v. St. Clair, 247 S.W. 203, 215 Mo.App. 479. (2) Before the accused could be convicted of a felony, the State was required to prove, as part of its case, that the liquor sold was of the kind and character described in the statute and indictment drawn under it. The State failed to prove the sale of any kind of liquor. State v. Kroeger, 13 S.W.2d 1067, 321 Mo. 1063; State v. McMillen, 39 S.W.2d 559, 327 Mo. 1189; State v. Miller, 44 S.W.2d 16. (3) The State is bound by the charge it made. It charged the sale of hootch and it must stand or fall by that charge. The State must prove the sale of hootch or acquit the defendant. State v. Miller, 44 S.W.2d 15; State v. McMillen, 39 S.W.2d 559, 327 Mo. 1189.
Stratton Shartel, Attorney-General, L. A. Vonderschmidt, Special Assistant Attorney-General, for respondent.
There was ample evidence of the crime charged in the indictment having been committed, as well as evidence of defendant's guilt. The weight of the evidence and the credibility of the witnesses were exclusively questions for the jury and this court will not invade the province of the jury. State v. Hedrick, 296 S.W. 153; State v. Pinkard, 300 S.W. 751; State v. Cummins, 22 S.W.2d 777; State v. Brown, 163 Mo.App. 39.
Burney, J. Leedy, J., not sitting; Ellison and Tipton JJ., concur.
Appellant was indicted in the Circuit Court of Shelby County on a charge of selling a half pint of "hootch" in violation of Section 4500 of the Revised Statutes of Missouri, 1929. Upon trial he was found guilty and his punishment assessed at two years' imprisonment in the state penitentiary. His motion for new trial having been overruled and judgment having been entered on accordance with the verdict, he appealed.
The evidence in the case is substantially as follows:
The appellant was, at the time he was charged with having committed the act set out in the indictment, the operator of a filling station and battery recharging service located on one of the business and residence streets of Clarence, Missouri. Lowell Clemm, State's witness, testified that he was seventeen years old and was a sophomore in the Clarence High School; that the sophomore class was having a party on the evening of the day the sale was alleged to have been made and that he wanted some liquor so that he could have a good time. That he and Gilbert Wells drove in Wells' car to appellant's filling station where he (Clemm) alighted and went into the building and ordered "half a pint," paying therefor sixty-five cents; that he saw no other person present in the building at the time save and except the appellant; that he returned to the car and he and Wells drank the liquor. In answer to the prosecutor's question he said that he guessed it made him feel kind of dizzy and light-headed; that he did not know what he received, what kind of liquor; that he did not know corn whisky from whisky or corn whisky from moonshine; that he ordered a half a pint of liquor and that the liquor which he purchased from the appellant seemed stronger and was somewhat lighter in color than the contents of State's Exhibit A, introduced in evidence at the trial.
This testimony was corroborated by State's witness Wells, with the exception of the testimony as to the actual sale. State's witness Gaines testified that he was sheriff of Shelby County and had been for three years; that he had had some experience in testing and identifying hootch and intoxicating liquors; that he identified hootch by its smell; that some hootch was lighter in color than others and that some smelled stronger than others; that the contents of State's Exhibit A was hootch. On cross-examination he stated that he could not tell whether there was alcohol in the State's exhibit without having it tested and that he did not know whether or not there was any alcohol in the exhibit.
Appellant took the stand in his own behalf and denied that he ever sold hootch or any other liquor to Clemm. He admitted that Clemm had come into his place of business on the afternoon in question and had asked him for some liquor, but that he had refused, saying: "Boy, I have no liquor."
Two other witnesses testified for the appellant to the effect that they were present when Clemm came in and asked for liquor and that appellant said he had no liquor and that Clemm immediately departed.
Appellant contends in his first assignment of error that the court erred in refusing to instruct the jury at the close of all the evidence to find a...
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