State v. Stewart

• Court: Missouri Court of Appeals
• Writing for the Court: DAVIS, C.--
• Citation: State v. Stewart, 271 S.W. 875, 216 Mo. App. 644 (Mo. App. 1925)
• Decision Date: 14 April 1925
• Parties: THE STATE OF MISSOURI, Respondent, v. CASSANDER STEWART, Appellant.

271 S.W. 875

216 Mo.App. 644

THE STATE OF MISSOURI, Respondent, v. CASSANDER STEWART, Appellant.

Court of Appeals of Missouri, St. Louis

April 14, 1925

Appeal from the Circuit Court of Lincoln County.--Hon. Allen W Walker, Special Judge.

AFFIRMED.

Judgment affirmed.

Howell & Jackson and Creech & Penn for appellant.

(1) (a) The court was not authorized to grant a change of venue and call in a special judge to try the case prior to the time defendant had filed his petition for same. Autenrieth v Schaff, 271 Mo. 248. (b) The law contemplates that defendant's petition for change of venue shall be heard and acted upon in court in term time, and that defendant has the right to consult and agree with the prosecuting attorney upon a member of the bar to try the case, to be approved by the court. Sec. 3992, R. S. 1919. (c) In the event defendant and the prosecuting attorney fail to agree on a member of the bar to try the case, the defendant has the right to have the clerk hold an election of a special judge to try the case under Sec. 2441, R. S. 1919, provided the requisite number of attorneys are present in court and there were in this case when defendant requested that an election be held. State v. Downs, 164 Mo. 471; Autenrieth v. Schaff, 271 Mo. 248; Sales v. Barber Asphalt Paving Co., 166 Mo. 671. (d) (1) The jurisdiction of the regular judge to call the judge of another circuit to try a criminal cause depends on the refusal of a special judge to act after his election. Sec. 3994 R. S. 1919. (2) The special judge is not invested with jurisdiction in a case unless his appointment is in conformity to the manner prescribed by statute. State v. Gillham, 174 Mo. 670; Ex Parte Fish, 184 S.W. 479; Ladd v. Forsee, 163 Mo. 506; Bank v. Graham, 147 Mo. 147. (2) (a) (1) The motion to quash the indictment should have been sustained, since the indictment did not specify the kind or character of intoxicating liquor alleged to have been possessed by defendant, but charged in general terms possession of "intoxicating liquor." State v. Sills, 56 Mo.App. 408; State v. Gibbs, 129 Mo.App. 700; State v. Cox, 29 Mo. 475. (2) Ordinarily an indictment which charges the offense in the language of the statute is good, but where the statute does not individuate the offense and describes the offense in generic terms, the indictment must charge the offense in such specific and definite terms as to inform the defendant of what he is charged. State v. Laughlin, 160 Mo. 33; State v. Hogan, 31 Mo. 340; State v. Krueger, 134 Mo. 272; State v. Murphy, 141 Mo. 267; 22 Cyc. p. 343; 12 Standard Proc. p. 454; 10 Ency. Pldg. & Proc., pp. 487, 488; State v. Murphy, 164 Mo.App. 204; State v. Fare, 39 Mo.App. 110; State v. Clark, 223 Mo. 48; State v. Jones, 168 Mo. 402; State v. Kelly, 206 Mo. 693; State v. Patterson, 159 Mo. 98. (3) The court permitted the witness, Tommy Owens, to testify that the contents of the jug of which defendant was charged with possessing, made "several of them drunk," and that it made Louis Hutchens "drunk," which was an invasion of the province of the jury and equivalent to telling the jury that the contents of the jug was intoxicating liquor, the identical issue on trial. It is error to allow the testimony to invade the province of the jury. Campbell v. Railroad, 175 Mo. 161; State v. Terry, 172 Mo. 213; State v. Pratt, 121 Mo. 566; Koons v. Railroad, 65 Mo. 592; Jackman v. Railway, 187 S.W. 786; Taylor v. Railway, 185 Mo. 239; Castanie v. United Rys. Co. 249 Mo. 192; Glascow v. Railway Co., 191 Mo. 347; Gutridge v. Railroad, 94 Mo. 468; McAuliffe v. Railways Co., 237 S.W. 129. (b) To testify that certain liquor made some person drunk is the statement of a conclusion, the acts and conduct of the person should be described and leave the jury to draw the conclusion. State v. Terry, 172 Mo. 213; Brook v. City of Morrillton (Ark.), 111 S.W. 471; Jurt v. Railroad, 94 Mo. 255; Limbaugh v. Forum Lunch Co., 258 S.W. 454. (4) The witness, Douglas Baker, knew nothing as to the facts of the case, his testimony had no bearing on any issue in the case and was highly prejudicial to defendant. (5) Instruction No. 2 given for the State gave the jury a drag-net commission to find defendant possessed any kind of intoxicating liquor, and this after the State had got the witness Owen to say he "would call it whisky." The prosecuting attorney continually referred to the contents of the jug as "whiskey," and under this State of facts the jury should have been required to find that defendant possessed whiskey before they could convict him. The instruction was broader than the evidence, and an instruction must be within both the pleadings and the evidence. State ex rel. v. Ellison, 270 Mo. 645; Vance v. Anderson, 255 S.W. 322; Bank v. Murdock, 62 Mo. 70; Degonia v. Railroad, 224 Mo. 564; Mansur v. Botts, 80 Mo. 658. (6) The court erred in not sustaining the demurrer to the evidence offered in the nature of a peremptory instruction. The evidence was wholly insufficient as to whether the liquid in question was whiskey or intoxicating liquor. State v. Weagley, 240 S.W. 822; State v. Morrison, 240 S.W. 822; State v. Craft, 246 S.W. 931; State v. McIntyre, 256 S.W. 141.

Grover C. Huston, Prosecuting Attorney, and Derwood E. Williams, of Counsel, for respondent.

(1) (a) The change of venue in this case was granted by the court while in regular session on the 12th day of March, 1923, upon the application of the defendant, which was duly filed in said cause, by the defendant the 12th day of March, 1923. Title Guaranty Co. v. Drennon, 208 S.W. 474; Stegman v. Berryhill, 72 Mo. 307; Jewett v. Railway, 38 Mo.App. 51; State v. Church, 199 Mo. 605; Secs. 3991, 3992, 3994, R. S. 1919. (b) Upon the failure or refusal of the prosecuting attorney and the defendant to agree on a member of the bar to try the case, the regular judge had the authority to call in a judge of another circuit as special judge to try the case, and was not required to order an election of a special judge under the provisions of section 2441, R. S. 1919, even though the requisite number of attorneys were present in court to hold an election. Secs. 2441, 3991, 3992, 3994, R. S. 1919; State v. Gilham, 174 Mo. 671; State v. Hunter, 171 Mo. 435; State v. Summar, 143 Mo. 220; Autenrieth v. Schaff, 271 Mo. 248. (c) The regular judge was within his rights in setting the cause down for immediate hearing, and in calling Judge Walker as special judge to try the cause, and the fact that Judge Walker was in Troy at the time was not prejudicial to the rights of the defendant. Section 3994, R. S. 1919; State v. Church, 199 Mo. 605, 625. (2) The indictment herein is in the language of the statute and that is sufficient. Section 6588, R. S. 1919, as amended by laws of 1921, pp. 413, 414. State v. Heilman, 246 S.W. 622; State v. Goetz, 255 S.W. 346; State v. Stegner, 276 Mo. 435; State v. Nash, 283 Mo. 34; State v. Berry, 255 S.W. 337; State v. Smith et al., 261 S.W. 696; State v. Patterson, 222 S.W. 882; State v. Cantrell, 234 S.W. 800, 290 Mo. 232. (3) (a) The evidence on the count charging possession of intoxicating liquor is sufficient State v. Perkins, 240 S.W. 851; State v. Clark, 256 S.W. 554; State v. Heilman, 246 S.W. 623; State v. Hale, 256 S.W. 1092; State v. Kiely, 255 S.W. 343. (b) The trial court properly received the evidence that the liquor which had been in defendant's possession made several persons drunk. 22 C. J., p. 599, Sec. 694; Fulton v. Met. Street Ry. Co., 125 Mo.App. 239; Partello v. Railroad, 217 Mo. 645; Kirchof v. United Railway Co., 155 Mo.App. 70; Limbaugh v. Forum Lunch Co., 258 S.W. 451. (4) Instruction No. 2 complained of by appellant is a correct statement of the law applicable to the case, and the court was not required to confine the instruction to whiskey. State v. Bunyard, 253 Mo. 347; State v. Kyle, 177 Mo. 659; State v. Chauvin, 231 Mo. 31. (5) A witness who had suitable opportunities for observation may state whether a person was intoxicated, the extent of his intoxication; and whether he had been drinking or was just recovering from a state of drunkenness. Facts on which the opinion is based should be stated so far as this is practicable, and inconsistent facts may be inquired for on cross-examination.

DAVIS, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

DAVIS, C.--

By an indictment filed on April 15, 1922, by the Grand Jury of Lincoln county, defendant was charged in the first count with selling about one gallon of intoxicating liquor to Louis Hutchens; and by the second count with possessing about one gallon of intoxicating liquor. On the trial the first count was dismissed, the jury returning a verdict on the second count against defendant, and assessing his punishment at thirty days in the county jail and a $ 300 fine. From the judgment entered thereon defendant appealed.

The State's evidence tends to show that on a certain Sunday in August, 1921, Louis Hutchens, the owner and operator of an automobile, with others seated therein, drove from Davis through Troy to Ethlyn to attend a baseball game. On their way to Ethlyn from Troy they came to the Withrow barn within the city limits of Troy. Near this barn the defendant was seen standing in the street near his car, which he had driven to the west side of the street. On approaching defendant, Louis Hutchens' car was stopped or slowed down, and defendant handed a jug to the occupants of the car driven by Louis Hutchens, or set the jug within.

Witness Tommy Owens, for the State, testified as follows: "Q. Did you taste or drink any of the contents of this jug? A. I took one drink, yes, sir. Q. What did you drink? The Court He may state, if he knows, what it was. A. I would call it whiskey. Q. Anybody else...