State v. Varnon
| Decision Date | 04 October 1943 |
| Docket Number | No. 38657.,38657. |
| Citation | 174 S.W.2d 146 |
| Parties | STATE v. VARNON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Butler County; Randolph H. Weber, Judge.
John S. Varnon was convicted of sale of intoxicating liquor without a license, and he appeals.
Affirmed.
O. A. Tedrick, Byron Kearbey, and R. I. Cope, all of Poplar Bluff, for appellant.
Roy McKittrick, Atty. Gen., and William C. Blair, Asst. Atty. Gen., for respondent.
BOHLING, Commissioner.
John S. Varnon appeals from a judgment imposing a sentence of two years' imprisonment for the sale of intoxicating liquor without a license.
Appellant objects to the word "spirituous" in the information, which charged the offense of selling "spirituous intoxicating liquor" without having a license therefor. The Missouri Liquor Control Act makes it "unlawful for any person * * * to * * * sell * * * in this state intoxicating liquor, as herein defined, in any quantity, without taking out a license," Sec. 4895, R.S. 1939, Mo.R.S.A., the offense being a felony, Sec. 4900(g), ibid. Section 4894, ibid, provides "the term `intoxicating liquor' as used in this act, shall mean and include alcohol for beverage purposes, alcoholic, spirituous, vinous, fermented, malt, or other liquors, or combination of liquors, a part of which is spirituous, vinous, or fermented, and all preparations or mixtures for beverage purposes, containing in excess of three and two-tenths (3.2%) per cent of alcohol by weight." "Spirituous" intoxicating liquor, by Sec. 4894, is intoxicating liquor within the meaning of Sec. 4895; and this constitutes a sufficient reason why appellant's assertion that the information is fatally defective on the ground it failed to follow Sec. 4895, when it described the liquor as "spirituous," is without merit.
Appellant had a fruit packing house on his farm in Butler county where he gave farewell parties, dances, at which he sold, according to his testimony, soft drinks. Saturday night, November 15, 1942, State Liquor Agent Platt, and Deputy Sheriff Howe went to this place to make a buy of liquor. Agent Platt knew a person in the building and left without attempting to buy. Appellant testified that Deputy Howe asked if he could get some whiskey and he, appellant, told him no. Platt and Howe then joined Chief Deputy Brent and Deputy Kearbey. They went to Quinlin and arranged with Doyle Creasey (aged 23) and Paul Austin (aged 18) to attempt to purchase liquor from appellant. Creasey testified he was a friend of appellant's and thought he could make a buy on account of the friendship. Creasey and Austin, after arriving outside appellant's place with the officers, went in and asked appellant where they could get some whiskey. Appellant stated he did not have any for sale but had some for his own use and could let them have part of it. Creasey said all right, asked the cost and, upon appellant informing him it was eighty-five cents, he and Austin each gave appellant a marked dollar bill. Appellant then went upstairs, returned with two "coke" bottles, and gave each, Creasey and Austin a bottle and fifteen cents in change. After drinking part of the contents of the bottles, they called the officers. Appellant had gone upstairs. When the officers went upstairs appellant was pouring whiskey out of a quart bottle into a "coke" bottle. Appellant stepped back and secured another full quart of whiskey. He was then arrested and had upon his person, among other things, over $300 in cash, including the two marked dollar bills. Creasey and Austin testified the liquor they purchased was whiskey. The bottles—those purchased by Creasey and Austin and those taken at the time of the arrest from appellant by the officers—were marked for identification, sealed and delivered to the Secretary to the Supervisor of Liquor Control. Trooper O. S. Lyle, Laboratory Chemist, State Highway Patrol, received the sealed bottles from said Secretary and testified that his laboratory test disclosed the contents to be intoxicating liquor; in excess of 3.2% etc. There was evidence that there were about twenty young people in appellant's place when the officers arrived (Sunday morning about 12:20) and that some of them were "pretty drunk."
Appellant's version is that when Creasey asked him for whiskey, appellant told him that while he, appellant, had some there for his own use, he didn't have a license and could not sell whiskey; that, after about two minutes, Creasey asked for some "cokes"; that when appellant started to get the cokes out of the ice box, he was informed they wanted "hot cokes," and that he sold each of them a bottle of coca cola. He testified he had taken a "coke" upstairs for himself; that he went upstairs and decided he wanted a little whiskey in it and was pouring whiskey into a "coke" bottle about the time of his arrest.
A point submitted, without citations, is that a circumstantial evidence instruction should have been given on the ground there was no direct evidence that the liquor examined by the chemist was in the same condition it was when sold. If this point be preserved in the motion for new trial (we think it was not), it ignores the testimony of Creasey and Austin to the effect the liquor they purchased and received from appellant was whiskey. The point is disallowed. Furthermore there was testimony that the containers were marked for identification, sealed and delivered to one who delivered them to the chemist. The chemist testified they were sealed when he received them and that they contained intoxicating liquor. The evidence does not indicate they were tampered with. Consult observations in State v. Daly, 210 Mo. 664, 667, 109 S.W. 53, 56, 57.
Appellant also says that the two containers taken from him at the time of his arrest, as hereinabove narrated, were improperly admitted. To establish error, appellant cites State v. McAnnally, Mo. Sup., 259 S.W. 1042, and like cases. One of appellant's difficulties here is that no claim was made that this evidence was obtained by illegal means until it was offered. See State v. Tull, 333 Mo. 152, 160[6], 62 S.W.2d 389, 392[8]. We overrule the contention.
Appellant's asserted error with respect to a remark of the prosecuting attorney is without merit. The court sustained appellant's objection, admonished the jury that only the evidence adduced was to be considered and...
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