State v. Zuck

• Decision Date: 03 July 1940
• Docket Number: 36958
• Citation: 142 S.W.2d 8
• Parties: STATE v. ZUCK
• Court: Missouri Supreme Court

142 S.W.2d 8

STATE v. ZUCK

No. 36958

Supreme Court of Missouri, Second Division

July 3, 1940

A. H Garner, of Joplin, for appellant.

Roy McKittrick, Atty. Gen., and Max Wasserman, Asst. Atty. Gen for respondent.

OPINION

BOHLING, Commissioner.

S. Zuck appeals from a judgment imposing a sentence of four years' imprisonment for operating a motor vehicle while in an intoxicated condition.

There was ample testimony on behalf of the State to sustain findings that appellant was operating a motor vehicle on the public highway; that he was in an intoxicated condition and that, after he got out of the car, he was 'staggering.'

Appellants' brief asserts error in the overruling of his application for a continuance, based on the alleged absence of two witnesses who would give testimony of identical effect. The issue is not for review because the application for a continuance is not embodied in the bill of exceptions and no exception was saved to the court's action thereon. See, among others, State v. Fleetwood, 223 Mo. 69, 77(2), 122 S.W. 696, 698[2]; State v. Baugh, Mo.Sup., 217 S.W. 277, 280[1]; State v. Henson, 290 Mo. 238, 244(2), 234 S.W. 832, 834[2]; State v. Gilreath, Mo.Sup., 267 S.W. 880, 881[1]; State v. McVey, Mo.Sup., 66 S.W.2d 857, 859[3]. The application stated diligence had been exercised but there was no statement of any facts establishing diligence. Consult Sec. 3654, R.S.1929, Mo.St.Ann. § 3654, p. 3210; State v. Schooley, 322 Mo. 234, 241, 14 S.W.2d 628, 631(1-3). As we read the application and the evidence, one of the witnesses mentioned in the application appeared and testified. The point is ruled against appellant.

Other points in appellant's brief go to the punishment assessed. The complaint is the punishment is excessive. From the amount of the punishment, it is also stated the verdict was the result of bias and prejudice. A maximum punishment of five years' imprisonment in the penitentiary is authorized upon a conviction for operating a motor vehicle while in an intoxicated condition. See Secs. 7783(g) and 7786(c), R.S.1929, Mo.St.Ann. § 7783(g) and 7786 (c) pp. 5234 and 5240. In the circumstances, a punishment of four years' imprisonment is not to be adjudged excessive or, in itself, to establish bias and prejudice. Appellant's position is answered in State v. Copeland, 335 Mo. 140, 150(IV), 71 S.W.2d 746, 752[10];and State v. McGee,336 Mo.1082,1101[10], 83 S.W.2d 98, 109[...