Appeal
from Douglas Circuit Court; Hon. Fred Stewart
Judge.
Affirmed.
North
T. Gentry, Attorney-General, and James A
Potter, Assistant Attorney-General, for respondent.
(1) The
court did not err in overruling the motion to quash the
information. The information was in the language of the
statute and is sufficient. Sec. 5616, R. S. 1919; State
v. Hodges, 214 Mo. 376. (2) The court's ruling on
the demurrer at the close of the State's evidence was
waived when the defendants introduced testimony in their own
behalf. (3) The court did not err in overruling the demurrer
at the close of the whole case. State v. Shout, 263
Mo. 360. In considering a demurrer the court must assume that
the evidence offered by the State is true, and if there is
any evidence of defendant's guilt its weight is for the
jury. State v. Pollard, 174 Mo. 607; State v
Hughes, 258 Mo. 272; State v. Belknap, 221 S.W.
45; State v. Jenkins, 225 S.W. 989; State v.
Loness, 238 S.W. 113; State v. Jackson, 283 Mo.
24; State v. Hascall, 284 Mo. 616; State v.
Mann, 217 S.W. 67. (4) The instructions given by the
court were in due and proper form. (a) Instruction number
one: Sec. 5616, R. S. 1919; State v. Hodges, 214 Mo.
376. (b) Definition of feloniously: State v.
Richardson, 248 Mo. 563. (c) Instruction number two:
State v. Noland, 111 Mo. 473; (d) Instruction number
three: State v. Brown, 270 S.W. 275. (e) Instruction
number four: State v. Pauly, 267 S.W. 799; State
v. Boes, 262 S.W. 1019. (f) Instruction number five:
State v. Noland, 111 Mo. 473.
Railey,
C. Higbee, C., concurs.
OPINION
On September 14, 1925, the Prosecuting Attorney of
Douglas County, Missouri, filed in the circuit court of said
county, a verified information, which, without caption and
jurat, reads as follows:
"Lz
Banta, Prosecuting Attorney within and for the County of
Douglas, in the State of Missouri, informs the court upon his
oath, that Ellis McMurry, Ollie Haynes, Buddy Haynes and
Oscar Burks, on the 23rd day of May, 1925, in said County of
Douglas, did then and there unlawfully and feloniously place,
use, put and throw into the waters of this State, to-wit,
certain waters called Beaver Creek, there situated, large
quantities of dynamite, to kill and injure fish with intent
then and there and thereby unlawfully and feloniously to kill
and catch fish in and from said waters, and the said Ellis
McMurry, Ollie Haynes, Buddy Haynes and Oscar Burks did then
and there by the means aforesaid, unlawfully and feloniously
catch and take a large quantity of fish in and from said
waters. Against the peace and dignity of the State."
Defendants
waived arraignment, and each entered his plea of not guilty.
They were put upon trial before a jury and upon September 23,
1925, each of said defendants was found guilty as charged in
the information and the punishment of each assessed by the
jury at a fine of one hundred dollars, and costs. Thereafter,
motions for a new trial and in arrest of judgment were filed
and overruled. Thereafter, on the same day, allocution was
allowed, judgment rendered and each defendant sentenced in
conformity with the verdict aforesaid. On September 23, 1925,
an appeal was allowed all the defendants aforesaid to this
court.
The
evidence in the case is short and is properly summarized by
counsel for the State, as follows:
"Quinton
Brazeale testified substantially as follows: That on the
afternoon of May 23, 1925, he was plowing corn
in his father's corn field about one quarter of a mile
from a certain hole of water known as the 'Bluff
Hole' in Beaver Creek; that about three o'clock in
the afternoon he heard a shot or explosion in the direction
of the 'Bluff Hole' which sounded to him like the
explosion of dynamite; that five or ten minutes later he went
down to the 'Bluff Hole' and there saw two of the
defendants with two other boys whom he did not know. He saw
the defendant McMurry wading out of the water. The water was
dingy like it had been disturbed, and he could see dead fish
in it, some of them floating on top and some lying on the
bottom. The witness also testified that he saw a hole in the
bottom of the creek where gravel had been thrown out and
where the explosion had occurred, and also scum on the creek;
that he had been swimming in the creek at noon and the hole
he saw in the afternoon was not there at the time he was in
swimming, and the water was then clear; that the shot had
been put off under a root and the gravel had been shoved back
and the scum from the bottom of the creek was floating. He
went back to this place later in the day and saw dead fish
floating on the top, and later he saw the defendants carrying
two strings of fish, going toward home.
"Cecil
Brazeale testified that he was in the corn field with his
brother on the afternoon of May 23, 1925; that he heard the
explosion in the direction of the 'Bluff Hole,' but
did not go down there immediately with his brother; that
about an hour and a half after the explosion he saw the
defendants going up the creek with two strings of fish; that
a day or two later he went down to the 'Bluff Hole'
and saw dead fish in a decomposed condition.
"Labe
Hartley testified that on May 23, 1925, he met the defendants
in the road about a mile and a quarter from the 'Bluff
Hole' on the Brazeale place; that the defendants had two
strings of fish and said they got them 'down the
creek.' They had some good trout. That this was about
four o'clock in the afternoon.
"Kell Ellison testified that he met the
defendants at Tigris on the 23rd day of May, 1925; that they
had two strings of fish; that the witness examined the
biggest one and it felt soft; that he had examined fish that
had been dynamited and that they also felt soft like the one
he examined in the possession of the defendants. The bones in
a fish that has been killed by dynamite are generally loose;
that in his judgment the fish he examined in the possession
of the defendants had been killed by dynamite.
"The
defendants testified in their own behalf and admitted that
they were in the 'Bluff Hole' in Beaver Creek at the
time mentioned in the State's evidence; that the Brazeale
boy came down to the 'Bluff Hole' at the time
testified to by him. They admitted that they carried home two
strings of fish and admitted that they met the witnesses
Ellison and Hartley, but denied that they exploded any
dynamite in Beaver Creek on that day; denied that they had
any dynamite or knew how to use it, and claimed that they
caught all the fish they had with grab hooks and with single
hooks. They denied hearing any explosion in or near
'Bluff Hole' or any other place on the afternoon the
crime was alleged to have been committed."
The
questions presented in the motion for a new trial will be
considered in the opinion.
Appellants
have filed no brief in this court and, hence, we must look to
the motion for a new trial for their assignments of error.
I.
Under this first proposition, they claim the trial court
erred in overruling their motion to quash the information,
for the alleged reason that it charges no offense under the
laws of this State.
No
specific objection to the information is pointed out in said
motion, nor is ther anything in the record to indicate why
they thought it ought to be quashed. The information is
heretofore set out, and speaks for itself. The defendants
were prosecuted under Section 5616, Revised Statutes 1919,
which reads as follows:
"No person shall place or use in any of the
waters of this State any medical drug, any ...
