State v. Thompson
| Decision Date | 20 December 1926 |
| Docket Number | 27063 |
| Parties | STATE v. THOMPSON |
| Court | Missouri Supreme Court |
A. R Troxell, of Columbia, for appellant.
North T. Gentry, Atty. Gen. (Walter E. Sloat, of Jefferson City, of counsel), for the State.
Defendant was convicted of the felony of transporting hootch, moonshine, and corn whisky, in Audrain county, in violation of section 21, page 242, Laws of 1923. The information charged defendant and one Oscar D. Graves jointly. Defendant was granted a severance and, upon his trial, was found guilty, and his punishment was fixed at a term of three years in the penitentiary. The appeal is from the judgment entered upon such verdict.
The sufficiency of the evidence was challenged by demurrer offered thereto, both at the close of the state's case and at the close of all of the testimony. A brief sketch of the testimony will suffice.
An automobile in which defendant and Graves were riding stalled in the mud in Audrain county, near Rush Hill. A farmer named Dick Gray hitched his team and wagon to the automobile and pulled it out. Due to some injury to the steering mechanism, Gray pulled the automobile to a garage in Rush Hill. He discovered the presence of a part of the liquor which was in the automobile.
While defendant and Graves were waiting in Rush Hill for repairs to be made to the automobile, the officers in some manner got word of the presence of the car and the liquor contained in it and arrested both of them. Six five-gallon cans and a gallon jug, all containing whisky, were found in the automobile. The story first told by Graves and defendant was that the liquor and the automobile both belonged to Graves, and that Thompson had nothing to do with it or the transportation of liquor, and was merely a guest of Graves riding in the automobile from St. Louis to Columbia, Mo., and that Thompson was ignorant of the presence of the liquor in the automobile when the journey began and had discovered the presence of the jug of whisky only after riding in the automobile with Graves for some distance.
At the trial Graves, without objection being made to his qualifications as a witness, testified that defendant paid him $ 30 to transport the liquor from St. Louis to Columbia, and that all of the liquor, except the gallon jug, belonged to Thompson. Graves admitted having made previous statements entirely exculpating defendant. He explained his change of story by saying that he was lying when he made the statement to the officer, but would not perjure himself and had to tell the truth when sworn as a witness. An assistant chemist from St. Louis testified that the liquor contained 46 per cent. of alcohol and was what was commonly called moonshine whisky.
There is no controversy about the material facts, except as to the ownership of the liquor by defendant and the sufficiency of the proof that the liquor was moonshine or corn whisky. Graves testified clearly as a witness that 30 gallons of the liquor was owned by defendant and that he was transporting it for Thompson. His statements to the contrary when not a witness were for the consideration of the jury, in determining the weight and credit to be given to his testimony as a witness. The jury had the right to believe his testimony and evidently did believe it.
We have carefully studied the testimony of the assistant chemist, Hazenstab. At first, he testified unequivocally that the liquor contained in the cans and jug was moonshine or corn whisky. He wobbled sadly upon cross-examination. He was examined upon redirect and cross-examination several times. When testifying on direct examination, he would say that the liquor was moonshine, but on cross-examination he would admit that he did not know that it was moonshine. The prosecuting attorney seemed to have the most perseverance and the final question and answer were:
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In addition to the testimony of Hazenstab, the record shows that the jury was permitted, without objection, to smell the liquor taken from the automobile and brought to the trial, and to taste it, if they desired. Whether or not the jury embraced the opportunity, we are not advised.
In such state of the record, the question of the character of the liquor was for the jury, as well as the question of the ownership of such liquor by defendant, and the trial court did not err in refusing to give the peremptory instruction asked by the defendant.
Instruction 2 was assailed. Defendant contends that it incorrectly defined the word 'transport' by stating that it included the transportation of intoxicating liquor. The first paragraph of said instruction abstractly defined transportation in the language of section 19 and of the 1923 act, except that it added the words 'hootch, moonshine, corn whisky,' to the term 'intoxicating liquor.' In the second paragraph, the definition was applied concretely to the facts of the case on trial. The words 'intoxicating liquor' were only used there in the following clause: 'Did then and there haul and convey in an automobile 31 gallons of intoxicating liquor, to wit, hootch, moonshine, and corn whisky, or any lesser amount thereof,' etc. This criticism of the instruction is obviously without merit.
Complaint is made that the trial court failed to instruct on all of the law of the case, and especially failed to define hootch, moonshine, or corn whisky. Its failure so to instruct was not properly called to the attention of the trial court in the motion for new trial, and the question is therefore not before us. State v. Conway, 241 Mo. 271, 145 S.W. 441; State v. Burrell, 298 Mo. 672 loc. cit. 678, 252 S.W. 709.
The contention is made that the trial court erred in admitting the testimony of the witness Hazenstab, upon the ground that he was not qualified as an expert. The following excerpt from his testimony contains the only objection to his qualification as an expert, to wit:
'Mr Troxell: I...
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