State v. Wheeler

• Citation: 2 S.W.2d 777
• Decision Date: 18 February 1928
• Docket Number: No. 28619.,28619.
• Court: United States State Supreme Court of Missouri
• Parties: THE STATE v. JOHN WHEELER, Appellant.

2 S.W.2d 777

THE STATE v. JOHN WHEELER, Appellant.

No. 28619.

Supreme Court of Missouri, Division Two.

February 18, 1928.

Appeal from Lincoln Circuit Court. — Hon. Edgar B. Woolfolk, Judge.

AFFIRMED.

Creech & Penn for appellant.

(1) The jury was composed in part of jurors, neither regular nor alternates, who were selected and summoned by a deputy sheriff under the order of the court. They were not ordered summoned, as provided by law, from the list of alternate petit jurors drawn by the county court, nor were they ordered to be summoned from the bystanders. Sec. 6617, R.S. 1919; State v. Powers, 136 Mo. 194; State v. Murphy, 292 Mo. 275; State v. Kramer, 222 S.W. 822. (2) The court rejected the testimony of the sheriff relating to the search of defendant's home while he was in jail, and taking from defendant's home a five-gallon bottle, and further rejected the proffer of defendant to show by the sheriff that said bottle contained dandelion wine. This was error, for defendant's defense was that the bottles broken in his car contained dandelion wine, and tended to corroborate his testimony, and that said testimony would tend to show the animus of the sheriff. State v. Wilcox, 179 S.W. 479; State v. Dixon, 190 S.W. 290.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General.

(1) The court properly overruled defendant's motion to quash. The information is in proper legal form and informs the defendant of the charge he has to meet. State v. Brown, 304 Mo. 78; State v. Pinto, 279 S.W. 144; Sec. 21, Laws 1923, p. 242. The title to act is sufficient and conforms to the provisions of the Constitution. State v. Tallo, 308 Mo. 584; State v. Mullinix, 301 Mo. 385. (2) The verdict is not the result of passion and prejudice. State v. Helpley, 279 S.W. 701; State v. Renfro, 279 S.W. 703; State v. Ellis, 290 Mo. 228; State v. Alexander, 285 S.W. 984. (3) The court committed no error in overruling defendant's challenge and exception to certain members of the jury. The statute as to empanelling of juries is directory and in the absence of a showing of prejudice the action of the trial court will be sustained. State v. Knight, 312 Mo. 411; State v. Riddle, 179 Mo. 287; State v. Woodard, 273 S.W. 1047; State v. Hayes, 262 S.W. 1034. If the jury panel is exhausted the court may order sheriff to summon other jurors. Sec. 6617, R.S. 1919. (4) The court did not commit error by permitting the sheriff to testify that State's Exhibit No. 1, contained whiskey, without first qualifying him. (a) The meaning of "hootch," "moonshine," "corn whiskey," is of common knowledge and familiar to every one of general intelligence. State v. Griffith, 279 S.W. 135; State v. Pinto, 279 S.W. 144. (b) Such matters are not the subject of expert testimony. State v. Watson, 216 Mo. 433; Tutie v. Kennedy, 272 S.W. 117. (c) Where a witness testifies that a certain liquid is whiskey and the record does not show he tasted or smelled of the liquid, a question is raised for the jury, and the weight of his testimony is for the jury to decide. Rice v. State, 107 S.W. 833. (d) The testimony of an officer that a valise of defendant contained whiskey was held admissible. Johnson v. State, 171 S.W. 211. (e) It is permissible for a witness to testify that a certain liquid looks like whiskey. Whitten v. State, 252 S.W. 526. (5) The evidence was amply sufficient upon which to base the verdict of the jury. State v. Bishop, 296 S.W. 147; State v. Nave, 285 S.W. 723; State v. Milstead, 285 S.W. 429; State v. Helpley, 279 S.W. 701. It is proper under a charge of transportation of "moonshine" to prove that the liquor transported was moonshine whiskey. State v. Wright, 312 Mo. 626; State v. Brown, 285 S.W. 995. (6) The court committed no error in refusing defendant's offer to show that his home was searched without a search warrant after he was arrested for transportation of moonshine, and his further offer to show that he had a five-gallon jug of dandelion wine in his home and that he had given some of his friends some of this wine a few days before he was arrested for the crime for which he stood trial. Evidence, to be admissible, must concern the matters in issue. When evidence does not relate to the matters in issue, then it is irrelevant and inadmissible. 16 C.J. sec. 1034, p. 543; State v. Elvins, 101 Mo. 243; State v. Huff, 161 Mo. 459; State v. McCoy, 111 Mo. 517.

HENWOOD, C.

The appellant (a negro) was charged, by an information filed in the Circuit Court of Lincoln County, with the unlawful transportation of "moonshine." The jury found him guilty and assessed his punishment at imprisonment in the penitentiary for five years. He was sentenced accordingly and appealed.

The evidence offered by the State shows that the sheriff and one of his deputies and the prosecuting attorney arrested appellant on a public road, a short distance from the city of Troy, in Lincoln County, late in the afternoon of June 5, 1926. The officers were driving in the sheriff's car and overtook appellant, driving in the same direction and alone, in an Overland sedan. As soon as appellant recognized the officers, he stopped his car and, using one bottle of liquor as a hammer, began to break several other bottles of liquor, which he had in a basket in the back part of his car. He resisted the effort of the officers to get possession of the liquor and, after a struggle, in which he exchanged blows with the officers, he was overpowered, handcuffed and taken to jail. He told the doctor, who dressed his wounds shortly after his arrest, that the officers struck him when "he was trying to break up the whiskey." All of the bottles in the basket were broken, but the other bottle of liquor, which appellant used as a hammer, was captured and produced at the trial intact. The necks of five broken bottles and pieces of the broken basket were also offered in evidence by the State. Both the sheriff and his deputy testified that the unbroken bottle contained moonshine whiskey and that the basket and the paper in the basket, and the car in places, were "saturated" with moonshine whiskey.

Appellant, testifying in his own behalf, admitted that he broke the bottles in the basket when he saw the officers nearby, but insisted that the liquor in the unbroken bottle was alcohol and that the other bottles contained dandelion wine. He said he was on his way to the river to join some friends on a fishing party, when intercepted by the officers; and that he made the wine and had filled the five-pint bottles from "a big glass bottle" at home.

I. Both the information and the statute which defines the offense charged were attacked in the trial court, but these points are not briefed by appellant and, therefore, not seriously urged in this court. The information, in addition Information: to other essentials, charges that appellant did Statute. "unlawfully, wilfully and feloniously transport moonshine." It is sufficient in form and substance. [State v. Cardwell, 279 S.W. 99.] We have heretofore upheld the validity of the statute involved (Sec. 21, Laws 1923, p. 242) against similar attacks. [State v. Tallo, 308 Mo. 584, 274 S.W. 466; State v. Combs, 273 S.W. 1037.] It follows that the motion to quash the information was properly overruled.

II. It is seriously contended that the trial court erred in permitting four special jurors to be included in the panel of twenty-four jurors from which the jury in this case was selected, over the objection of appellant. We are unable to agree with learned counsel in this contention. The deputy sheriff, Jurors. who summoned these and other special jurors, testified that he did so under the order of the court and after all of the members of the regular panel had been exhausted. He further testified that he had no suggestions from the sheriff or any other person as to whom he should summon and that, when he summoned the four jurors in question from Hawk Point, he did not know the sheriff had formerly lived in that locality. While Section 6617 of the Revised Statutes of 1919 provides that alternate jurors selected by the county court shall be substituted for members of the regular panel who are disqualified or excused from jury service, it also provides "that if it shall be necessary to fill vacancies in the jury panel for the trial of any one case the court may in its discretion order the sheriff to summon from the bystanders a sufficient number of qualified persons to fill such vacancies in such case." Moreover, we have held that the statutory provision relating to the substitution of alternates for regular jurors is merely directory, and that the use of special jurors instead of alternate jurors to fill vacancies on the regular panel is not error unless it appears that the rights of the accused were prejudiced thereby. [State v. Knight, 312 Mo. 411, 278 S.W. 1036; State v. Woodard, 273 S.W. 1047; State v. Hayes, 262 S.W. 1034; State v. Murphy, 292 Mo. 275, 237 S.W. 529.] And, although it happens that the State's case, in this instance, was made on the testimony of the...