The State v. Link

• Decision Date: 25 June 1926
• Docket Number: 26988
• Parties: The State v. Everett Link, Appellant
• Court: Missouri Supreme Court

286 S.W. 12

315 Mo. 192

The State v. Everett Link, Appellant

No. 26988

Supreme Court of Missouri

June 25, 1926

Appeal from Dunklin Circuit Court; Hon. E. P. Dorris, Special Judge.

Reversed and remanded.

Munger & Munger and J. W. Farris for appellant.

(1) The defendant was found guilty on count one of the indictment which alleges that he manufactured "hootch," "moonshine" or "corn whiskey." These terms are not synonymous. State v. Pinto, 279 S.W 147. Therefore, the indictment was uncertain in its allegations. State v. Wyatt, 245 S.W. 583; State v. Fletcher, 257 S.W. 159; State v. Bounds, 262 S.W. 411. (2) The court erred in giving instruction numbered 4-a, because the instruction is a comment on the evidence and singles out for the jury's attention the testimony of Allie Pryor, when the indictment does not contain the name of any person. State v. Northington, 268 S.W. 59. (3) It is error to instruct the jury permitting them to convict upon a state of facts not supported by the evidence. State v. Stemmons, 262 S.W. 707; State v Marlen, 259 S.W. 434; State v. Jordan, 268 S.W. 70.

North T. Gentry, Attorney-General, and A. B. Lovan Special Assistant Attorney-General, for respondent.

(1) Count one of the indictment charges that the defendant, "did unlawfully and feloniously manufacture, make, brew and distill intoxicating liquor commonly called 'hootch,' 'moonshine,' 'corn whiskey,' against the peace and dignity of the State." This count of the indictment is in approved form. State v. Alexander, 278 S.W. 709. The third count in the indictment charges that the defendant "did unlawfully and feloniously sell intoxicating liquor commonly called 'hootch' 'moonshine' or 'corn whiskey' against the peace and dignity of the State." This count of the indictment is also sufficient according to the authority above cited. (2) The appellant complains because in the verdict the jury not only found the defendant guilty as charged in the third count of the indictment but also added "of selling 'hootch,' 'moonshine,' 'corn whiskey,' to Allie Pryor." The words just quoted are surplusage. The verdict is good without them and cannot be harmful because it included them. There could possibly be no prejudice to the defendant because of the form of the verdict.

OPINION

Blair, J.

At the March term, 1924, of the Circuit Court of Stoddard County, an indictment in twelve counts was returned against appellant, charging him with various and sundry violations of our prohibition laws. The regular judge was disqualified and the judge of another circuit was called in as special judge. Later an application for change of venue was filed, alleging bias and prejudice of the inhabitants of both Stoddard and Dunklin counties. The application was sustained as to Stoddard County, and overruled as to Dunklin County, and the case was transferred to and tried in Dunklin County.

Appellant filed his plea in abatement, challenging the indictment on numerous grounds, including the ground that separate and distinct felonies and misdemeanors were improperly joined in such indictment. A motion to quash the indictment was also filed. Both the plea in abatement and the motion to quash the indictment were overruled, and exceptions saved.

At the conclusion of all the evidence, the State elected to stand upon counts one and three of the indictment. Said counts charged violations of Section 21, Laws 1923, page 242, which constituted felonies. All other counts were dismissed. Thereupon the case was argued and submitted to the jury and verdicts of guilty were returned on both counts. Timely motions for new trial and in arrest of judgment were filed and overruled. Appellant was sentenced to two years' imprisonment in the penitentiary on each count. An appeal was granted to this court.

Although the motions for new trial and in arrest of judgment assigned quite an array of errors alleged to have been committed below, appellant has briefed and submitted the case here almost entirely upon one proposition. We will treat the assignments not renewed here as abandoned and consider only those urged in this court.

Appellant was charged in the first count with manufacturing, making, brewing and distilling "hootch," "moonshine," "corn whiskey" and in the third count with selling "hootch," "moonshine" or "corn whiskey." So much of Section 21 of Laws of 1923, at page 242, as is of importance here, reads as follows: "If any person shall manufacture, make, brew, distill, sell, give away or transport any 'hootch,' 'moonshine,' 'corn whiskey' shall be guilty of a felony," etc.

Generally speaking, said section denounces three separate and distinct classes of acts which constitute felonies, to-wit, making, disposing of and transporting "hootch," "moonshine," "corn whiskey." The first count of the indictment charged appellant with making such intoxicating liquor and the third count charged him with selling such intoxicating liquor. It is apparent that the making of such intoxicating liquor is a separate and distinct offense from the selling of such intoxicating liquor because a person might be guilty of making it without selling it or might be guilty of selling it without having made it. A person might make it and also sell it and thereby be guilty of two distinct offenses in respect to the identical liquor.

The question for determination then is whether appellant could legally be charged with such separate and distinct felonies in separate counts of the same indictment and could be tried and convicted of more than one felony under one indictment and at the same trial.

There is no express prohibition against such practice to be found in our statutes. They expressly authorize the joining in one indictment or information of separate counts for certain crimes. Counts for larceny and embezzlement and counts for larceny and obtaining property by false pretenses may be joined. [Sec. 3896, R. S. 1919.] Counts for burglary and larceny may be joined in the same indictment and convictions had on both counts. [Sec. 3305.] Counts may also be joined charging different degrees of the same offense. [Sec. 3897.] It has also been frequently held by this court that the same offense may be charged in different ways in separate counts to meet the form the proof may take.

The two separate and distinct felonies of making and of selling intoxicating liquor are certainly no more akin to one another than are the felonies of forging an instrument and uttering the same forged instrument. This court has held that counts for forgery and for uttering the same forged instrument may be joined in the same indictment, or information, but has uniformly held that the accused could not be convicted of both offenses. A conviction of one is equivalent to an acquittal of the other.

In State v. Carragin, 210 Mo. 351, defendant had been convicted of both the forgery and the uttering of the same forged instrument under separate counts in the same information and his punishment had been fixed at two years in the penitentiary on each count. Judge Gantt there very ably and exhaustively reviewed the cases and held that the trial court erred in overruling the motion to require the State to elect and also erred in instructing the jury that they might convict defendant of both offenses. His treatment of the question is quite lengthy and we will not repeat it here. It may be found at pages 359 to 371, both inclusive, in Volume 210 of our Reports. We can add nothing to the reasoning employed or to the conclusions reached in his able opinion.

Judge Gantt summed up his conclusions as follows:

"From the foregoing authorities we deduce the principle that it would have been proper for the circuit court to have instructed the jury on the evidence produced in this case, after defining what would constitute a forgery of the indorsement, and uttering the same, that they might find the defendant guilty under either count of the indictment accordingly as they found the facts to be, but not upon both, or have required the prosecuting attorney at the close of the evidence to have elected upon which count he would ask a conviction. In instructing the jury that they might find the defendant guilty under both counts, and in refusing to require the prosecuting attorney to elect after all the evidence was in, the court committed reversible error. We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute."

In State v. Young, 266 Mo. 723, in discussing the right of the State to charge separate and distinct felonies in separate counts in the same information, Faris, P. J., said:

"The legal test of permitted joinder is not whether the offenses charged in different counts of a single information as having been committed in different ways are, or are not, defined and denounced by different sections of the criminal code. The test is: Whether such offenses arose out of the same transaction, and are so far cognate as that an acquittal or a conviction of one would be a bar to a trial for the other."

In State v. Christian, 253 Mo. 382, at page 392, Judge Faris very ably discussed the cases and clearly announced the rule upon this question in disposing of the point there involved, which was the propriety of the joinder of two defendants in one count which charged larceny, while the other count charged only one of the defendants as an accessory after the fact in aiding the other to escape. He there said:

"Were the two offenses charged such as are permitted to be joined in the same information? We think not. The statute permits a count for larceny to be joined with a count for embezzlement or with a count for obtaining...