State v. Sissom

• Decision Date: 22 December 1925
• Docket Number: No. 26442.,26442.
• Parties: STATE v. SISSOM.
• Court: Missouri Supreme Court

278 S.W. 704

STATE v. SISSOM.

No. 26442.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Motion for Rehearing Denied January 6, 1926.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Tom Sissom was convicted of selling intoxicating liquor, and he appeals. Affirmed.

L. R. Jones, of Kennett, for appellant. Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On May 31, 1924, the prosecuting attorney of Dunklin county, Mo., filed in the circuit court of said county a verified, valid information, which, without caption and jurat, reads as follows:

"James V. Billings, prosecuting attorney, within and for the county of Dunklin, in the state of Missouri, upon his oath of office as such prosecuting attorney and upon his hereto .appended oath, and upon his knowledge, information and belief informs the court and charges that, at the county of Dunklin, in the state of Missouri, on or about the 27th day of November, A. D. 1923, the defendant, Tom Sissom, did unlawfully and feloniously sell certain illicit intoxicating liquors, commonly called moonshine, corn whisky, to wit, one-half pint more or less; said intoxicating liquors then and there containing more than one-half of one per cent. of alcohol by volume, against the peace and dignity of the state. James V. Billings, Prosecuting Attorney of Dunklin County, Missouri."

Defendant waived a formal arraignment and entered a plea of not guilty. Thereafter he was tried on the same day before a jury, and on July 22d the following verdict was returned:

"We, the Jury, find the defendant guilty as charged in the information, and assess his punishment at imprisonment in the penitentiary for the term of three years.

                   "G. M. Blaylock, Foreman."
                

Defendant filed motions for a new trial and in arrest of judgment. " Both motions were overruled, and thereafter judgment was rendered and sentence pronounced in conformity with said verdict. In due time an appeal was granted defendant to this court. Counsel for the state have made a fair and accurate statement of the material facts in the case, which is adopted as our statement, as follows: The evidence for the state shows that on November 27, 1923, one G. H. Force, the prosecuting witness in this case, went to the home of the defendant in Dunklin county, Mo., and purchased four gallons of moonshine whisky for the sum of $32, which he then and there paid the defendant. It further shows that the witness destroyed all the liquor except one-half pint which he retained in his possession from the date of the purchase to the date of the trial, and which was introduced into evidence and identified as moonshine whisky. The witness Force testified further that he went to the home of the defendant in company with one Pirtle and one Thomas. The witness Pirtle corroborated the testimony of the witness Foree to a considerable extent. Pirtle testified that he went to the defendant's home with Foree; that prior to reaching defendant's home he loaned Force $30 or $32; that he drank some whisky while at defendant's home; that the witness Force carried away from defendant's a suit case full of jugs, the contents of which the witness did not know. Defendant offered hi evidence witnesses Thomas, Huckabe, his son Audie Sissom, and himself. Thomas, Huckabe, and Audie Sissom all testified that they were present while the witness Foree was there; and they all testified that the witness Foree did not buy any liquor from the defendant nor take any liquor away with him. The defendant himself likewise testified that he did not sell the witness Foree any liquor on that day or at any other time.

Opinion.

It is insisted by appellant that his demurrer to the evidence at the conclusion of the case should have been sustained. G. H. Foree, a witness for the state, testified that he bought from defendant four gallons of moonshine whisky and paid him $32 therefor; that he tasted the four gallons when bought; that he took a half-pint bottle of said whisky, kept the same in his possession, and produced it before the jury at the trial. The testimony of this witness was corroborated in part by other evidence in the case. While the above facts were contradicted by defendant and his witnesses, it was the province of the jury to pass upon the same. After carefully reading the evidence set out in the transcript, we are clearly of the opinion that a case was made for the jury, and that the trial court committed no error in overruling appellant's demurrer to the evidence. State v. Brown (Mo. Sup.) 262 S. W. 710; State v. Gatlin (Mo. Sup.) 267 S. W. 797.

II. Under proposition 2 of appellant's brief, he charges the court with error in the giving of instruction numbered 1 in behalf of the state, which reads as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that, in the county of Dunklin, in the state of Missouri, on or about the 27th day of November, 1923, the defendant Tom Sissom did sell `moonshine whisky,' then and in that event you will find him guilty as charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of not less than two nor more than five...