State v. Steelman

• Decision Date: 12 December 1927
• Docket Number: 28333
• Citation: 300 S.W. 743,318 Mo. 628
• Parties: The State v. Burley Steelman, Appellant
• Court: Missouri Supreme Court

300 S.W. 743

318 Mo. 628

The State v. Burley Steelman, Appellant

No. 28333

Supreme Court of Missouri

December 12, 1927

Appeal from Shannon Circuit Court; Hon. E. P. Dorris Judge.

Affirmed.

North T. Gentry, Attorney-General, for respondent; Carl Otto of counsel.

(1) The verdict is within the law and is not the result of prejudice. State v. Helpley, 279 S.W. 702; State v Alexander, 285 S.W. 985; State v. Renfro, 279 S.W. 705; State v. Ellis, 290 Mo. 229, (2) This transportation of moonshine corn whiskey was made out on substantial evidence. Sec. 19, Laws 1923, p. 242; State v. Cardwell, 279 S.W. 100; State v. Hall, 279 S.W. 107; State v. Bennett, 270 S.W. 297; State v. Helpley, 279 S.W. 701. (3) The assignments of error in defendant's motion for new trial are too vague general, and indefinite and are not sufficient to preserve anything for review by this court. Sec. 4079, Laws 1925, p. 198; State v. Standifer, 289 S.W. 857; State v. Murrell, 289 S.W. 861; State v. Vesper, 289 S.W. 864; State v. Williams, 292 S.W. 20; State v. Eaton, 292 S.W. 73. (a) The assignments which complain of the admission and exclusion of evidence are without merit since the bill of exceptions fails to show a single objection by defendant to any evidence offered by the State, or that any evidence offered by defendant was excluded. (b) The State's main instruction contained all the elements of the crime charged and sufficiently declared the law of the case. State v. Cardwell, 279 S.W. 100. (4) Sec. 3957, R. S. 1919, provides that the court shall appoint counsel for a defendant charged with felony who is without counsel, if he is unable to employ counsel and requests such appointment for him. The court did not violate this statute since the defendant did not bring himself within its terms. Defendant has failed to show that he was unable to employ counsel; therefore, it was not reversible error to proceed with the trial. State v. Terry, 201 Mo. 697.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

An information was filed in the Circuit Court of Shannon County by which appellant was charged with the unlawful transportation of hootch, moonshine and corn whiskey. Appellant offered to plead guilty, provided the court would assess the lowest punishment. The court declined to do this and the case proceeded to trial. The jury found him guilty and fixed his punishment at imprisonment in the penitentiary for two years. He was sentenced accordingly and appealed.

The evidence offered by the State shows that on March 27, 1927, appellant was seen "pretty well intoxicated" at Bryant Camp, near Hartshorn, in Shannon County. He was first discovered when attempting to drive a team and wagon across some railroad tracks and "seemed to be hung up in the tracks with his wagon." Shortly thereafter, when arrested by a deputy sheriff, he was "coming down the railroad with a bottle in his hands, waving it around, and a knife, and talking pretty loud and using some pretty bad language." The deputy sheriff took charge of appellant's bottle of liquor and immediately turned it over to the sheriff of the county. Some of the residents of the neighborhood said that when they saw appellant in his wagon he had the bottle of liquor in his pocket. When asked if appellant made any statement concerning the bottle of liquor, the sheriff testified:

"Well, after I got him and got him down at Eminence I tried to find out where he got his whiskey and he told me the night before, Saturday night, he went over to his father's and stayed all night and the next morning he went out hog-hunting and got down in the woods somewhere a mile or two and found this whiskey, and it was about full, the bottle was about full, and it looked like a hog had rooted it up, and he said he found it by the side of a tree, and he said he took it to his father's house there and got his wagon and folks and put the whiskey in his wagon and drove back until he got near the team camp, and he kept drinking it along and about the time he got to the team camp he put it in his pocket and had it when Stotler arrested him." (Italics ours.)

Both the sheriff and his deputy said they examined the contents of the bottle and that it was "moonshine, corn whiskey." The bottle of liquor was offered in evidence and handed to the jury for their examination.

Appellant, who was not represented by an attorney at the trial, took the stand and his testimony in full is as follows:

"I found this whiskey where the hogs had rooted it out away from a tree, I wouldn't call it transporting, I ain't been transporting whiskey, I just drank a little too much and got too drunk, and I ain't in the habit of doing that; and I would like for the court to forgive me for this and I will let it alone from this on."

On cross-examination, appellant admitted that he had been previously convicted "on two different charges" in the Circuit Court of Shannon County, but the nature of these charges was not disclosed.

E. D. West was offered as a character witness for appellant. He said he had known appellant for "about a year;" that appellant had "always been a gentleman;" and that he had never known "of him drinking a drop."

Appellant has filed no brief and we now look to his motion for a new trial for prejudicial errors assigned to the trial court.

I. The motion asserts that appellant was ignorant of court procedure and unable to employ counsel at the time of his trial, and that he would employ counsel and have his case properly presented to a jury, if granted a new trial.

The record shows that the original complaint, upon which this charge is based, was filed before a justice of the peace on March 27, 1927, and that appellant waived a preliminary hearing; that on May 6, 1927, the information in this case was filed in the circuit court; and that on May 10, 1927, after both parties had announced ready for trial, the following proceedings were had in the circuit court:

"Defendant not represented by counsel. The court inquired of defendant if he had counsel, and he stated that he did not, that he had tried to employ counsel but had been unable to do so, and asked the court to appoint him counsel; whereupon the court inquired of the attorneys at bar of Shannon County, Hon. S. A. Cunningham, Hon. Jno. W. McClellan, Hon. L. N. Searcy and Hon. W. A. Despain, if he might appoint one or more of them to represent defendant; it was stated by the attorneys they would do what was requested of them, but they were informed this defendant with the help of his father was able financially to hire counsel, and some of the attorneys further stated that it had gotten to be a practice in this class of cases that defendants would come in and claim they were unable to hire counsel and the court would appoint counsel, and this was common talk among them. Defendant asks to plead guilty to this charge before the court and take the lowest punishment; the court refused to assess the lowest punishment, and informed him he could leave the case to a jury and they might assess the lowest punishment; and thereupon a jury was impaneled and sworn to try the case. The court requested Hon. Jno. W. McClellan to assist the defendant in challenging the jury, which he willingly did, and the trial proceeded with defendant's father sitting with him in the trial of the case. After these proceedings the court did not feel it incumbent upon himself to appoint counsel."

Sec. 3957, Revised Statutes 1919, provides that: "If any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours." (Italics ours.)

It is apparent at once from the language of this statute that before appointing or assigning counsel for a defendant charged with a felony the trial court must find three things first, that the defendant is without counsel; second, that he has requested the court to appoint counsel for him; and third, that he is unable to employ counsel. [State v. Terry, 201 Mo. l. c. 701, 100 S.W. l. c. 434.] While, as above indicated, it is shown by the record in this case that appellant was without counsel and, also, that he requeste...