State v. Ware
| Decision Date | 13 August 1925 |
| Docket Number | No. 3836.,3836. |
| Citation | 274 S.W. 853 |
| Parties | STATE v. WARE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.
W. A. Ware was convicted of the unlawful possession of intoxicating liquor, and he appeals. Affirmed.
Hall & Bradley, of Kennett, for appellant. James V. Billings, Pros. Atty., of Kennett, for the State.
Defendant was charged with unlawfully having in his possession intoxicating liquor. He was found guilty and his punishment fixed by the jury at a fine of $400 and six months in jail. Defendant, after unsuccessful motions for new trial and in arrest, has appealed.
Defendant has assigned no errors and filed no brief. Resorting to his motion for new trial, we find as the first ground a statement that there is no substantial evidence to support the verdict. The evidence discloses that defendant, in company with one Felix Metcalf, on the afternoon of December 23, 1922, was seen by the city marshal in the city of Kennett on a public street near the main part of the city carrying a box. The marshal went through an alley and came upon defendant and Metcalf on a corner. When the marshal arrived upon the scene he saw defendant and Metcalf breaking bottles, some of the contents of one bottle, when broken by defendant, caused a liquid to spatter on the marshal, which he testified was whisky. He dipped up some of the liquid discharged from other broken bottles, but it is not exactly clear whether from bottles broken by defendant or Metcalf. He identified the liquid he "dipped up" as corn whisky or "white mule." Defendant admitted breaking a bottle, but declared he did not know what it contained. A careful review of the testimony indicates ample evidence to support the verdict.
The only other statement in the motion for new trial requiring our attention relates to the alleged error of the trial court in admitting as evidence the "actions and doings" of Felix Metcalf. The marshal testified that Metcalf broke some of the bottles, and he was identified with the whole transaction. It is difficult to understand how the story of what happened on that occasion could be told and yet leave out Metcalf's acts and conduct. It was all a part of the res gesæ and properly admitted. State v. Woodward, 191 Mo. 617, 90 S. W. 90; State v. Gordon, 196 Mo. 185, 95 S. W. 420; State v. Kennedy, 207 Mo. 528, 106 S. W. 57.
Finding no error, the judgment is affirmed.
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