State v. Spano

• Decision Date: 25 May 1928
• Docket Number: No. 27948.,27948.
• Citation: 6 S.W.2d 849
• Parties: THE STATE v. JOE SPANO, Appellant.
• Court: Missouri Supreme Court

6 S.W.2d 849

THE STATE v. JOE SPANO, Appellant.

No. 27948.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Jackson Circuit Court. — Hon. Thad B. Landon, Judge.

AFFIRMED.

James M. Rader and Frank D. Rader for appellant.

(1) The court erred in overruling the defendant's motion to quash the indictment. The indictment contains two separate and distinct charges in one count. It attempts to charge defendant, first, with violation of selling hootch, moonshine or corn whiskey, and second with the giving away of hootch, moonshine or corn whiskey, each being separate offenses and felony. Vanvas v. United States, 13 Fed. (2d) 347. The verdict was a general verdict of guilty as charged in the indictment and the court, upon pronouncing sentence and judgment by virtue of said verdict, sentenced the defendant for the selling of intoxicating liquor. State v. Young, 215 S.W. 409; State v. Washington, 242 Mo. 401; City of Mexico v. Gray, 219 S.W. 707; State v. Nichols, 124 Mo. App. 330; State v. Link, 286 S.W. 13; 31 C.J. 758, par. 321; Com. v. Fleece, 5 Ky. L. 429. Said indictment is insufficient in that it does not set forth with sufficient particularity an offense to enable the defendant to prepare his defense, and is not sufficiently definite that the judgment rendered will be a complete defense to a second prosecution for the same offense. Turk v. United States, 20 Fed. (2d) 129; Partson v. United States, 20 Fed. (2d) 127; Jard v. United States, 19 Fed. (2d) 891; Lynch v. United States, 10 Fed. (2d) 947. (2) The court erred in refusing to instruct the jury concerning the law defining the giving away of corn whiskey as requested by defendant. (3) The court erred in overruling defendant's motion to elect requested at the beginning of the trial and at the close of the State's case and at the close of the whole case. State v. Link, 286 S.W. 15; State v. Young, 183 S.W. 307.

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

If the indictment is properly set forth as appears in the record, it is not fatally defective because of the omitted words. Ex parte Keet, 315 Mo. 700. The statute cures the defect. Sec. 3908, R.S. 1919.

Fred W. Lewis for appellant on rehearing.

(1) A motion for rehearing was filed and granted and this is the second time the case has been before this court on its merits. It will be noted that the alleged indictment does not state that the grand jury present and charge "upon their oath." As a matter of fact they neither "present" or "charge," nor is the alleged indictment upon their oath. This is not an indictment. It does not charge the appellant with any offense. State v. Sanders, 158 Mo. 610; State v. Ferguson, 152 Mo. 92; State v. Wagner, 118 Mo. 626; State v. Meyers, 99 Mo. 107; State v. Cook, 170 Mo. 210. (2) It has been held by this court that you need not specify the person to whom the intoxicating liquor is alleged to have been sold. State v. Hedrick, 296 S.W. 152; State v. Martin, 292 S.W. 39. If that is the law then the allegation that it was sold to a particular person is superfluous, and the State would be entitled to prove that it was sold to someone else. Now suppose that a member of this court was charged with sometime within three years, of having somewhere, in an area of several hundred square miles, with having sold a pint of whiskey to someone among 400,000 persons, how would you prepare your defense? Under the state practice you are not entitled to a bill of particulars. State v. Quinn, 40 Mo. App. 627; State v. Noell, 295 S.W. 529. All the information that you would have you glean from the pages of an indictment. It does not comply with the constitutional requirement that a person shall have the right to demand the nature and cause of his accusation, nor does it comply with the constitutional requirement that a person must be charged with an "indictment or information" when that requirement refers to an indictment as defined by the common law. State v. Terry, 109 Mo. 601; Lynch v. United States, 10 Fed. (2d) 947; Partson v. United States, 20 Fed. (2d) 127; Turk v. United States,`20 Fed. (2d) 129; Jarl v. United States, 19 Fed. (2d) 891; United States v. Milner, 36 Fed. 890.

WALKER, J.

In a proceeding by indictment in the Circuit Court of Jackson County the defendant was charged with the selling and giving away of hootch, moonshine and corn whiskey. Upon a trial he was found guilty and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.

The appellant was employed in a shoe shop in Kansas City. A boy about fifteen years of age, named William Fly, while waiting in the shoe shop for a street car, heard the defendant say to a person with whom he was conversing, that he could sell pure corn whiskey by the gallon or in less quantities. The next day the boy again stopped in the shoe shop and the defendant called him into a back room and asked him to sell whiskey for him. The boy said he could, and the defendant said they could make fifty dollars a week by such sales. A few days later the boy again went to the shop and the defendant delivered to him a pint of corn whiskey, for which the boy was to pay him one dollar. Before going to the shop to receive the whiskey the boy had informed a police officer, named Kennally, of the defendant's proposition to him. He gave the whiskey to the officer. The latter gave the boy a marked dollar and directed him to buy another pint of the liquor from the defendant. The boy went to the shoe shop and tendered the dollar to the defendant in payment for another pint of liquor, but the latter refused to sell it to him, and asked him if he had not been talking to the officer. Upon being arrested the defendant denied having sold liquor to the boy, but said he had given it to him. The liquor was introduced at the trial and was shown to be corn whiskey. The defendant admitted the possession of the pint of whiskey; that the boy asked him for it and that he refused to give it to him, but that the boy had taken it without the defendant's consent. Defendant's explanation of the possession of the liquor was that he was suffering from "flu" and that his doctor had prescribed it for his relief. His sister-in-law corroborated his testimony as to his illness and the doctor's prescription.

The indictment reads as follows:

"The Grand Jurors for the State of Missouri duly summoned from the body of the County of Jackson, being duly impaneled, sworn and charged, that Joe Spano, whose Christian name in full is to the said Grand Jury unknown, on the 25th day of January, 1926, at the County of Jackson, and State of Missouri, did then and there wilfully, unlawfully and feloniously, sell and give away Hootch, Moonshine and Corn Whiskey, to William Fly, Jr., for a beverage, the said sale and giving away of the said Hootch, Moonshine and Corn Whiskey being then and there prohibited and unlawful, against the peace and dignity of the State."

I. It is urged that the indictment is duplicitous in that it conjunctively charges two offenses in one count. There is no merit in this contention. The charge made is based Duplicitons upon Section 21, Laws 1923, page 242. Therein it is Indictment. provided that if any one shall manufacture, make, brew, distill, sell, give away or transport any hootch, moonshine or corn whiskey he shall, upon conviction be punished as prescribed. It will be seen that the offenses enumerated are stated in the alternative; that they are not repugnant and the punishment for each is the same. This being the case, their violation may be charged conjunctively in one count as one offense and the infliction of a penalty for the violation of one will be a bar to a prosecution for the others. This has been the rule in criminal pleading in this jurisdiction, beginning with State v. Ames, 10 Mo. 743. It finds its first definite application in a liquor case in State v. Murphy, 47 Mo. 274, in which it is ruled that: "Where a statute in one clause forbids several things or creates several offenses, which are not repugnant in their nature or penalty, the clause is treated in pleading as though it created but one offense and they may all be united conjunctively in one count and the count may be sustained by proof of the commission of one of the offenses charged." Later cases invoke, without qualification, the rule as above stated viz: St. Louis v. Theater Co., 202 Mo. 690, 698, 100 S.W. 627; State v. Miller, 188 Mo. 370, 377, 87 S.W. 484; State v. Pittman, 76 Mo. 56; State v. Bregard, 76 Mo. 322. The appellant's brief, argument and submission of the case was limited to the contention that the indictment was duplicitous.

II. It is urged in the motion for a rehearing that the indictment is further defective in that it omits Indictment: the words "to inquire within and for said county Omitting Words upon their oath, present and charge." Do Present and Charge.

The words omitted are no part of the indictment. Usually these words are held to be a part of the caption of the indictment but if, as in State v. Brooks, 94 Mo. 121, 123, 7 S.W. 24, they be declared to be a part of the commencement of the charge, their omission will not vitiate it where it shows that it is preferred by a lawful grand jury to a court of competent jurisdiction and is otherwise sufficient. [State v. Daniels, 66 Mo. 192, 206; State v. Freeman, 21 Mo. 482.] In the Daniels case, page 206, it is held that if the indictment contains the requisites above stated, it will be held to be sufficient, although the commencement of the same be wholly omitted.

In the Freeman case the commencement of the indictment was as follows: "The grand jurors for the State of Missouri, empanelled, charged and sworn to inquire within and for the body of the County of Hickory, upon their oath, that Silas M. Freeman, late, etc., in and upon one Wm. Freeman, etc., did make an assault." The contention made in the ...