State v. Summers

• Decision Date: 02 March 1926
• Docket Number: No. 3935.,3935.
• Citation: 281 S.W. 123
• Parties: STATE v. SUMMERS.
• Court: Missouri Court of Appeals

281 S.W. 123

STATE v. SUMMERS.

No. 3935.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Mississippi County; Frank Kelley, judge.

W. O. Summers was convicted of manufacturing intoxicating liquor, and he appeals. Reversed and remanded.

Munger & Munger, of Bloomfield, for appellant.

C. A. Powell, Pros. Atty., of Bloomfield, for the State.

COX, P. J.

Prosecution upon information on a charge of manufacturing intoxicating liquor. On trial by jury, defendant was convicted and has appealed to this court. The offense is alleged to have been committed in 1922, in Stoddard county. The first information was filed in that county July 25, 1922. A change of venue was granted and the case sent to Butler county, where it was nollied January 9, 1924. Another information charging the same offense was filed in Stoddard county February 2, 1924, and this cause, on change of venue, went to Mississippi county and was there tried and defendant convicted. A motion to quash the information was filed and overruled, and also a plea to the jurisdiction of the circuit court of Mississippi county, but by stipulation of counsel these points and also the question of limitations are waived in this court, and we shall therefore not discuss them.

The witnesses for the state were the sheriff of Stoddard county and his deputy, who testified, in substance, that they found a still in operation manufacturing whisky. This still was in a thicket about three-eighths of a mile from defendant's house and in a small inclosure. They found the still in operation, and a son of defendant, who looked to be 16 or 17 years of age, was pumping water for use in connection with the still, and then was seen fixing the fire under the boiler. While the boy was thus engaged the defendant was sitting on a bench close by, and there were no persons present except the defendant and his two sons. One son was working at the still as above stated, and the other, a younger boy, just standing around. The officers arrested the defendant and the older boy. The defendant then stated that there was no use taking the boys; that the still was his and the boys had nothing to do with it. This was the evidence relied upon by the state.

The defendant proved a good reputation as a law-abiding citizen. He also testified in his own behalf, and in his testimony he stated that the still was not on land controlled by him; that he was there at the still as the officers testified and made the statement to them that it was his still as they had testified; that he made the statement that the still was his in order to shield his sons, but that the still belonged to another man, and that he had nothing to do with operating it.

The court gave several instructions for the state, and refused several asked by defendant. We shall only notice such as appear to deserve some attention. Defendant asked an instruction on circumstantial evidence which the court refused. We think this was properly refused. We think the testimony of the state witnesses was' direct and not circumstantial evidence, and there was no evidence on which to base an instruction as to the sufficiency of circumstantial evidence to justify a verdict of guilty based thereon.

The court gave the usual instruction on reasonable doubt. The defendant asked and the court refused an instruction which concluded with the following language:

"If, after a full and fair consideration of all of the evidence, facts, and circumstances shown in this case, you or any of you have a reasonable doubt of defendant's guilt, you must give him the benefit of such doubt and refuse to return a verdict of guilty."

The general instruction on reasonable doubt was all that the court was required to give, and the refusal of the instruction asked was not error. State v. Young, 16 S. W. 408, 105 Mo. 634; State v. Garth, 65 S. W. 275, 164 Mo. 553, 565; State v. Finley, 213 S. W. 463, 278 Mo. 474, 480; State v. Arnett (Mo. Sup.) 210 S. W. 82, 84.

Based on the evidence of the officers as to what defendant stated to them when they arrested him, the court gave the usual instruction that, in weighing that testimony, what he said, if anything, against himself, was presumed to be true, etc. This instruction follows approved forms, and, while it names defendant and so necessarily confines the instruction to statements made out of court by defendant, and is not general in terms so that it would apply to any witness, yet it has been approved so often by the Supreme Court of this state that it must be now taken as settled that such an instruction, which names the defendant and specifically calls attention to statements made by him out of court, is properly given when there is evidence that the defendant made statements out of court that tended, if true, to show guilt. State v. Wansong, 195 S. W. 999, 1002, 271 Mo. 50, 60; State v. Liolios, 225 S. W. 941, 285 Mo. 1, 24; State v. Glazebrook (Mo. Sup.) 242 S. W. 928, 933; State v. Long (Mo. Sup.) 253 S. W. 729, 732; State v. Hayes (Mo. Sup.) 262 S. W. 1034, 1036.

It is also now settled that when a defendant testifies in his own behalf the court may give a general instruction, applying to all witnesses, that the jury may consider the interest of any witness in the result of the trial, etc., in weighing his testimony, but it is error in that case to name the defendant and confine the instruction to his testimony. State v. Finkelstein, 191 S. W. 1002, 269 Mo. 612. It is also error in an instruction in a civil case to name a witness and tell the jury that they may consider the interest of that witness in the result of the trial in weighing his testimony. Stetzler v. Metropolitan Street Ry. Co., 109 S. W. 666, 210 Mo. 704, 712; Benjamin v. Metropolitan St. Ry. Co., 151 S. W. 91, 245 Mo. 598, 615. Just why an instruction may name a party to a suit and then tell the jury how to consider statements made by him out of court while the court cannot name a party to a suit and tell the jury how to weigh his testimony when he testifies at the trial, does not seem very clear to us, but it is not our province to reconcile the two positions if they be in conflict.

On the credibility of witnesses and the weight to be given their testimony the court gave the following instruction:

"The court instructs the jury that you are the sole judges of the testimony and the weight thereof and the credibility of the witnesses. In determining what weight you will give to the testimony of any witness, you will take into consideration the conduct and demeanor of suck witness while on the witness stand, his or her manner of testifying, his or her apparent means of knowledge or lack of knowledge, the bias or prejudice, if any, exhibited, his or her interest, if any, in the result of the trial, and the reasonableness or unreasonableness of such witness' testimony. If you find that any witness has willfully sworn falsely to any material fact at issue in this cause, you should disregard such part of his or her testimony, and are at liberty to disregard the entire testimony of such witness which you may conclude from all the testimony is not worthy of belief. `Willfully,' as used in this instruction, means intentionally; that is, not accidentally."

This instruction tells the jury that "in determining what weight you will give to the testimony of any witness you will take into consideration"; then follows the things to be considered. The use of the word "will" instead of "may" is unfortunate, if not erroneous. It is equivalent _ to the word "must," and we have always understood that the only time a court can tell a jury that they must do anything is when a peremptory instruction is given. To tell them that they must consider certain things in weighing the testimony of a witness seems to us to be invading the province of a jury. The jury is properly told that they are the sole judges of the weight of the evidence and the credibility of the witnesses. The only way they can be the sole...