State v. Wright
| Decision Date | 20 December 1926 |
| Docket Number | 27415 |
| Parties | STATE v. WRIGHT |
| Court | Missouri Supreme Court |
John Duncan, of Hayti, and Crowder & Cooper, of Blytheville Ark., for appellant.
North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty Gen., for the State.
Appellant was convicted of selling 'white corn whisky' in Pemiscot county. The jury assessed his punishment at imprisonment in the state penitentiary for a term of two years. Judgment was entered on such verdict, and an appeal was granted to this court. Appellant was charged jointly with his brothers Tom Wright and Louis Wright. Severances were taken. Tom Wright was tried and convicted of manufacturing white corn whisky. He appealed, and the judgment was affirmed here. State v. Tom Wright, 312 Mo. 626, 280 S.W. 703. Appellant was granted a change of venue to New Madrid county, where this case was tried.
The information was in four counts. The first count charged appellant and others with manufacturing white corn whisky; in the second count they were charged with selling white corn whisky; in the third count they were charged with possession of a still; and in the fourth count they were charged with possession of white corn whisky. Counts 3 and 4 were dismissed before the trial. The case was submitted to the jury on counts 1 and 2. The jury acquitted appellant on count 1, and convicted him on count 2. No complaint is made concerning the joinder of two separate and distinct felonies in the same information.
The second count charged that on or about December -- , 1923, appellant, Tom Wright, and Louis Wright feloniously sold a half pint of white corn whisky, which sale was unlawful and prohibited. This count sufficiently charged one of the offenses denounced by Laws of 1923, p. 242, § 21, as a felony. State v. Wright, supra, 312 Mo. 626, 280 S.W. loc. cit. 705; State v. Griffith, 311 Mo. 630, 279 S.W. 135 loc. cit. 138; State v. Vesper (No. 27456; Mo. Sup.) 289 S.W. 862, decided December 20, 1926, and not yet [officially] reported.
There was sufficient substantial evidence in support of the charge of selling white corn whisky to authorize submission of the case to the jury on the second count and to sustain the verdict of guilty as charged in said count. One E. P. Curtis testified that, in August or September, 1923, appellant sold him a pint of white corn whisky in Pemiscot county for $ 1.25. That was subsequent to the taking effect of Laws of 1923, p. 242, § 21, and prior to the filing of the information. Appellant told Curtis that he was making whisky. The liquor was unlawfully manufactured whisky. The foregoing testimony alone made a case to go to the jury on the second count. See State v. Wright, supra; State v. Griffith, supra.
Rogers Gibson testified to giving appellant $ 2.50 for a quart of white corn whisky or moonshine in December, 1923, in Pemiscot county. Appellant, as a witness, admitted that Gibson gave him $ 2.50, but claimed that he went to a neighbor and bought a quart of liquor for Gibson, and brought it back to him, and that Gibson gave him a drink.
No motion to compel an election between said alleged sales was filed. Appellant testified as a witness, and denied making whisky as charged in the first count. He also denied making any sale of liquor to Curtis or to Gibson. As above suggested, he sought to show that, in the alleged sale to Gibson, he was merely acting as a messenger or agent for Gibson.
The main efforts of the defense were concentrated on diverting attention from the charge against appellant by trying one Fred Curtis, son of E. P. Curtis, for various and sundry supposed offenses, such as operating a still, selling liquor, wife beating, etc. Most of this testimony was entirely inadmissible upon any theory, and should not have been permitted to go to the jury. Fred Curtis was not even a witness in the case.
Appellant has filed no brief, and we are compelled to go to the motion for new trial for the errors assigned. The first three assignments are that the verdict is contrary to the law contrary to the evidence, and contrary to both. Without considering the sufficiency of the assignments, we have already shown that the verdict is contrary to neither...
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