State v. Vallo

• Citation: 33 S.W.2d 899
• Decision Date: 20 December 1930
• Docket Number: 30617
• Parties: STATE v. VALLO
• Court: Missouri Supreme Court

33 S.W.2d 899

STATE v. VALLO

No. 30617

Supreme Court of Missouri, Second Division

December 20, 1930

Benj. H. Marbury, of Farmington, for appellant.

Stratton Shartel, Atty. Gen., and Silas E. Garner, Sp. Asst. Atty Gen., for the State.

OPINION

WHITE J.

the appeal is from a judgment upon conviction of defendant June 19, 1929, in the circuit court of St. Francois county, on a charge of feloniously selling moonshine whisky. Defendant's punishment was fixed at five years in the penitentiary.

I. The first error assigned in the motion for a new trial is that there was no formal arraignment nor waiver of arraignment. The defendant waived a formal arraignment by announcing ready for trial and going to trial. Section 3958, R. S. 1919; State v. Robinett, 312 Mo. 635, 281 S.W. 29.

II. It is next claimed that a verdict for defendant should have been directed because there was no competent evidence that the liquor alleged to have been sold was moonshine whisky, as averred in the information.

One Addie Anderson was called as a wit ness for the state. She said she went with her husband, Robert Anderson, to the place of business of Mike Vallo in Bonne Terre, and that her husband bought a pint of moonshine whisky. She saw him do it. This statement was objected to and stricken out on motion of defendant and the witness directed to tell what she saw there. She said her husband asked Mr. Mike Vallo if he had any liquor, and Vallo answered, 'Yes sir,' and went out and got a bottle and handed it to her husband, and her husband paid for it and got in the truck with it. She afterwards examined the liquor, drank some of it, and said it was moonshine whisky. There was no objection by the defendant to her qualification to testify regarding the character of the liquor.

On cross-examination the witness was asked how she knew the liquor purchased was moonshine whisky. She answered that she knew moonshine whisky when she saw it. There was no objection to that conclusion. In cross-examination, or otherwise, there was no attempt to ascertain how Mrs. Anderson knew the liquor was moonshine, or what experience she had had with it. Under those circumstances, the evidence was sufficient to make out a case. State v. Miller (Mo. Sup.) 12 S.W.2d 39.

III. In the course of his argument, the prosecuting attorney said that it was not his custom to tell the jury what punishment they should give, but in this case, in his opinion, they should give the...