State v. Tally

• Decision Date: 11 December 1929
• Docket Number: No. 29802.,29802.
• Citation: 22 S.W.2d 787
• Parties: STATE v. TALLY.
• Court: Missouri Supreme Court

22 S.W.2d 787

STATE v. TALLY.

No. 29802.

Supreme Court of Missouri, Division No. 2.

December 11, 1929.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Levy Tally was convicted of selling hootch and moonshine, under the name of white mule, and he appeals. Affirmed.

J. C. McDowell, of Charleston, for appellant.

Stratton Shartel, Atty. Gen. (Robert D. Durst, of Springfield, of counsel), for the State.

WHITE, C. J.

In the circuit court of Mississippi county, February 15, 1929, the defendant on a jury trial was found guilty of selling hootch, moonshine, "under the name of white mule," and his punishment assessed at two years' imprisonment in the penitentiary. The court rendered judgment upon the verdict and the defendant appealed.

I. The case originated in Scott county, and on change of venue, at the instance of defendant, went to Mississippi county. Before the trial in Mississippi county, the defendant filed a motion to quash the information, on the ground that it was duplicitous in charging defendant with selling "hootch," "moonshine," and "corn whisky." The record shows that defendant filed a term bill of exceptions at the October term, 1926, of the circuit court of Mississippi county, but that bill of exceptions does not contain the motion; therefore we are unable to consider that assignment of error. It may be further said that the information did not describe more than one offense, because it mentioned one act described by different words. The defendant was charged with making only one sale.

II. In examination of the jury panel on the voir dire, defendant's attorney, Mr. Munger, asked one juror, Gaty, this question: "Suppose 11 of the jury think the defendant is guilty, and be satisfied with his guilt beyond a reasonable doubt, and you had doubt whether he was guilty, what would you do then?" Objection to this question was sustained and defendant's counsel asked whether, under the circumstances, the juror would stand by his conviction, or would he allow the others to influence him. An objection to this question was sustained by the court. The appellant assigns error to those rulings.

The trial court is vested with a large discretion in allowing examination of prospective jurors as to their qualifications. A juror is sworn and instructed to decide the issues according to the law and the evidence. Counsel may not, in advance, ask him to speculate upon what he might do, and how his verdict might be influenced by certain contingencies that may arise later. His view of the evidence and the instruction may be influenced by the reasoning of his associates and by the argument of counsel, and there is no objection to that. The only thing required is that he reach a conclusion which is satisfactory to him. Such questions are therefore improper. Keegan v. Kavanaugh, 62 Mo. loc. cit. 232.

III. It is further claimed by the appellant that a case was not made out of selling hootch, moonshine, or corn whisky. The first witness for the state, Mr. Chambliss, testified that on November 15, 1925, he went to Levy Tally's place, about one-quarter of a mile from Sikeston, in Scott county, with two companions, John Elkins and Tom Cantrel; that, when he got there, he went in one building, and his companions went in another building. He saw Tally and got some "white mule" from him. After several questions, endeavoring to get him to tell by what other name the "white mule" was called, he finally said it was sometimes called "bootleg." He got a pint of it and paid $2 for it. Said he drank it; Elkins and Cantrel drank part of it. On further questioning as to what sort of stuff it was, he said: "I bought it for `white mule,' drank it for that, and that is what I called it. I bought it to drink and drank it." He was then asked what effect it had upon him. His answer was: "I never drank enough to get on a `toot' at all. There is a right smart of Irish about me, and I always liked it, but I couldn't explain the effect to the jury." He was asked then if it had the usual effect of whisky. He said he did not drink enough that way, to have that effect. Then this question was asked: "I will ask you whether or not this had, to some extent, an intoxicating effect on you." His answer was: "Yes, sir." The evidence of this witness shows throughout that he was an unwilling witness, endeavoring every way he could to evade a direct statement as to the stuff he bought, and the state was therefore entitled to ask him the leading question, notwithstanding the defendant's objection.

Joel King, the sheriff of Mississippi county, testified that he had had experience with violation of the Prohibition Act and that he acquired a knowledge of things and kinds of things prohibited by the act; that he was familiar with what was called "white mule," and that "white mule" sometimes goes under other such names as "moonshine" and "hootch." He said that in Mississippi county they usually call stuff of that kind "moonshine" or "white mule," and then was asked on cross-examination if he had any experience in the identification of "corn whisky," "hootch," or "moonshine." He said he knew it when he saw it; that he didn't see the particular whisky which the defendant was charged with selling.

The defendant was sworn, and testified that he did not sell any "hootch," "moonshine," or "corn whisky" on November 15th. He claims that upon this evidence the case was not made for the jury. It all turns upon whether the "white mule" described by the witness Chambliss was "moonshine" or "corn whisky." Chambliss himself evaded every question by which it was intended to give the...