OPINION
HIGBEE, C.
An
information was filed in the circuit court of Ozark county on
March 14, 1927, charging that the defendant on or about
January 30, 1927, in said county, unlawfully and feloniously
sold one quart of hootch, moonshine, corn whisky. At the
first trial, on May 11, 1927, the jury was unable to agree on
a verdict and was discharged. At the second trial, held on
November 17, 1927, the following verdict was returned:
'We, the jury, find the defendant, Tom Walker, guilty as
charged in the information and unable to agree on the
punishment.' The court assessed the punishment at
imprisonment for a term of two years in the penitentiary.
After a motion for a new trial was filed and overruled,
sentence was pronounced, and the defendant appealed.
Cecil
Gibson, aged 19, testified, in substance: 'Dale Sanders
and I went to the defendant's house in Ozark County on
January 30, 1927. I asked the defendant if he had any liquor.
I don't know how he said it, but he said he guessed we
might find some. We told him we would like to have a drink,
and we stepped into the kitchen and there were a half a
gallon setting on the table and we took a quart bottle and
poured us out a quart. We laid $ 2.50 on the table. There had
been nothing said about the price. I figured that was about
what it was worth. I never seen him take the money. There
were several people there. I couldn't name them.'
Cross-examination:
'I
took the bottle with me. I carried it in my pocket. We rode
up to the gate on horse-back. We went in the kitchen. We saw
a half gallon fruit jar. I poured the liquor out.
'Q.
Did you ask Tom if you could buy any liquor from him? A.
Well, we mentioned about it and he said we might find some.
'Q.
You saw the whisky on the floor? A. Yes, sir. I don't
know whose liquor it was. I poured that liquor out of the jar
into the quart bottle.
'Q.
Didn't you testify at the other trial that Tom Walker
said it was $ 2.50 a quart? A. Yes, sir. When I was arrested
I made this complaint against Tom Walker. I was promised
leniency if I would make that affidavit and tell where I got
that liquor. Laith Ingram and Joe Morrison, deputy sheriff,
told me that.
'Q.
You further said you never saw Tom Walker with any
intoxicating liquor in his possession? A. I don't know
whose possession it was in.'
Here
witness identified his signature to an affidavit,
Defendant's Exhibit 1.
Redirect:
'Joe
Morrison, deputy sheriff, took the quart bottle of liquor off
me that I got at Tom Walker's.'
Dale
Sanders testified, in substance:
'I
went with Cecil Gibson to defendant's house on January
30, 1927. I seen Cecil get a quart bottle of whisky in the
kitchen. He laid $ 2.50 in silver down on the table. I heard
no conversation between Cecil and Tom in regard to the whisky
before he picked it up.'
Joe
Morrison, deputy sheriff, testified:
'I
took a quart bottle of liquor off Cecil Gibson the night of
January 30, 1927. I smelled of it. In my judgment it was corn
whisky.'
Cross-examination:
'I
poured that liquor out. I don't know what it was except
by my judgment on the sense of smell. I am no experienced
drinker. I never had any experience in making it except what
I seen by catching where they was making it.'
Ed
Newton, deputy sheriff, testified:
'I
arrested the defendant on this charge. He was in the field
about 250 yards from his house. When he saw me he started
off; the further he went the faster he went; he ran about 150
or 175 yards before we stopped him. My boy, Vasco Newton, was
with me. He ran around and stopped the defendant. He began to
cuss the boy and I told him there was no
use of that; that I had a warrant for him and he said it
wasn't the first damn warrant he had heard read.'
The
defendant read in evidence the affidavit of the witness Cecil
Gibson above referred to, in part as follows: 'The
defendant Tom Walker has never given affiant any intoxicating
liquor; that affiant found certain intoxicating liquor or
what he supposed was intoxicating liquor on or about January
30, 1927, but so far as he knows the defendant Walker did not
place or put it where it was found by affiant; that affiant
had not seen defendant for a week or ten days before the
finding of said intoxicating liquor, and never heard him say
he would sell or give away intoxicating liquor.' This
affidavit was sworn to before A. L. Ingram, circuit clerk, on
May 9, 1927.
The
defendant testified:
'I
am fifty-nine years old and have lived in this county since I
was eleven years old. I heard the testimony of Cecil Gibson
and Dale Sanders. They came to my house; Gibson wanted work.
I did not sell them any liquor of any kind. I did not place
any liquor on the floor for them to get, nor see any money
placed on the table. I did not have any whisky there that day
nor get any money directly or indirectly for any whisky. I
seen the boys there with the liquor. One of them brought the
whisky in the house. They asked for a funnel. They brought in
a half gallon fruit jar; it wasn't full, and Gibson
changed the liquor into a quart jar and bottle. I tasted it;
they started out with it. They had on coats and put it in
their pockets. I don't know whether they had on coats or
not. I had no liquor. I got into a little trouble about
liquor not long ago and I decided it was the thing to quit. I
had a conversation with Cecil Gibson since this term of
court. He asked me if I felt sore at him for what he swore;
he said: 'I never would have swore what I did; I intended
to swear what the affidavit was. I heard Dale Sanders make
the statement he did and I thought I ought to make the
statement Dale did; that would have been the best thing for
my case.' He told me he got the liquor from Dale Sanders.
I heard Ed Newton's testimony. He was mistaken; I never
run. I was crippled with rheumatism in my right leg. I have
been convicted five or six years ago for selling or
possession of liquor. I don't remember which.'
The
defendant offered other evidence corroborating his testimony.
1. No
brief has been filed for the appellant. The information is
based on section 21, p. 242, Laws of 1923, and charges a sale
of one quart of hootch, moonshine, corn whisky. The
sufficiency of the information was not challenged in the
trial court nor in the motion for new trial. It is in the
language of section 21 and clearly charges a sale in
violation of the statute. State v. Wright, 312 Mo.
626, 280 S.W. 703.
2. The
motion for new trial assigns error in overruling the demurrer
to the evidence, in that there was no evidence that the
defendant sold any hootch, moonshine, or corn whisky, and
that the testimony of the witnesses for the state, Cecil
Gibson and Dale Sanders, was so completely impeached and so
unreasonable, improbable, and contradictory as to be unworthy
of belief.
We have
set out the substance of the testimony. The weight and
credibility of the evidence was for the determination of the
jury. Gibson asked the...
