The State v. Polson

• Decision Date: 03 June 1927
• Docket Number: 27777
• Citation: 295 S.W. 743,317 Mo. 293
• Parties: The State v. Kennett Polson, Appellant
• Court: Missouri Supreme Court

295 S.W. 743

317 Mo. 293

The State v. Kennett Polson, Appellant

No. 27777

Supreme Court of Missouri

June 3, 1927

Appeal from Carroll Circuit Court; Hon. Ralph Hughes Judge.

Affirmed.

North T. Gentry, Attorney-General, and David P James, Assistant Attorney-General, for respondent.

(1) The information properly charges the manufacturing of intoxicating liquor. Sec. 21, Laws 1923, p. 242; State v Gatlin, 267 S.W. 797; State v. Cockrum, 278 S.W. 700; State v. Alexander, 278 S.W. 709; State v. Wright, 280 S.W. 703; State v. Brown, 304 Mo. 78. (2) Appellant's objections to the admittance and rejection of testimony and to the overruling of the demurrer of defendant, are too general and too vague to merit consideration. Sec. 4079, R. S. 1919; Laws 1925, p. 148; State v. Jackson, 283 Mo. 24; State v. McBrien, 265 Mo. 604; State v. Whitman, 248 S.W. 938. (3) Instruction 12 was entirely proper and in no way invaded the province of the jury. The court permitted appellant's counsel to address the jury in explanation of his objection to this instruction. This discussion by the learned counsel for appellant, as set out in the record, was a sufficient antidote to the alleged poison contained in this instruction. (4) Assignment 9 is a blanket objection to instructions numbered 1, 2, 3, 4, 5 and 12 on the part of the State, and is too general for consideration. Sec. 4079, Laws 1925, p. 198; State v. Standifer, 289 S.W. 857. (5) Assignment 10 is also without merit. The instructions given by the court properly cover all the phases of this case. The court's instruction on the defense of an alibi was complete. State v. Starling, 207 S.W. 767.

OPINION

Blair, J.

After one mistrial, appellant was convicted upon the second count of an information charging the felony of manufacturing moonshine or corn whiskey, as defined by Section 21, Laws 1923, page 242. The jury assessed his punishment at imprisonment in the county jail for four months and a fine of $ 500. He was thereafter granted an appeal from the judgment entered upon the verdict.

A very brief statement of facts will suffice. The scene of the alleged crime was the vicinity of Miami Station in Carroll County. The time was October 2, 1925. One William Lawson testified that he was "deputized" by the sheriff to go to a ravine about a mile from Miami Station, where it was suspected a still was being operated. Going a roundabout way, Lawson stealthily approached the designated spot and, from a concealed vantage point about thirty yards away and at the hour of about ten or eleven in the forenoon, saw a still in operation, with appellant tending it and doing something with some barrels near by. Appellant's team and wagon were tied to a tree close to the still. Lawson had known appellant since childhood and positively identified him.

Lawson slipped quietly away and immediately notified the sheriff, who, with his deputy and accompanied by Lawson, went to the still the same afternoon and found it set up and yet warm, although appellant was not then present. The fire had been removed. A halfgallon jar of corn whiskey and eleven barrels of mash were found. Wagon tracks from the spot where Lawson claimed to have seen appellant's team hitched were followed to appellant's barn lot. There was evidence that straw had been taken from a straw stack there. Straw was scattered along the wagon tracks. This straw had been used to cover the mash barrels.

Appellant was arrested several days later. He did not take the stand in his own behalf. His wife and other witnesses gave testimony tending to show that appellant was away from his farm all day on October 22nd. If their testimony was true, appellant was not at the still at the time Lawson said he was there. A negro named Joe Smith testified that, during the whole day of October 22nd, he used the only team which appellant owned. He was working the team on his place that day two and a half miles from where appellant lived. On the other hand, a witness for the State testified in rebuttal that he saw appellant's team near appellant's place on the afternoon of October 22nd.

Appellant has not favored us with a brief. One of the assignments in his motion for new trial is that the evidence was insufficient to sustain the verdict. The facts which we have stated demonstrate that this assignment is without merit. According to the State's evidence, Lawson saw appellant firing the still. The sheriff found it deserted, but still warm. The appellant's team was tied to a tree at the still and the wagon tracks were traced to his barn lot. The testimony tended to show that the liquor found there, and evidently the product of the still, was corn whiskey. The jury might have accepted appellant's alibi and acquitted him. It evidently did not believe his witnesses. Appellant is concluded by the verdict of the jury upon the facts.

The second count of the information properly charges an offense under Section 21, Laws 1923, page 242. [State v. Gatlin, 267 S.W. 797.] The complaint that the information charged two separate and distinct felonies was not open to appellant at the last trial. An election by the State to try upon the second count was made at the close of the testimony on the first trial. Therefore, at the second trial, only the second count of the information was before the jury.

The second, third and ninth assignments in the motion for new trial, relating to alleged improper admission and exclusion of evidence and to the giving of instructions one to five, inclusive, are too general to comply with Section 4079, Laws 1925, page 198. [State v. Standifer, 289 S.W. 856.] They are not properly before this court for consideration.

Assignment one in the motion for a new trial is more definite. It complains of the refusal of the trial court to permit appellant to show the number and ages of his children. Even if appellant had the right to make this proof, which it is unnecessary to consider, he could not possibly have been prejudiced by the particular ruling complained of. His wife, by whom he sought to make the proof, had already testified that she and appellant had several small children of school age and a baby who was taken to school by the other children on the very day that the still was raided. In addition to this, appellant merely excepted to the ruling of the court sustaining the objection to his question and made no offer of proof. The assignment is without substantial merit.

Assignment six, that Instruction 1 "assumes that there are true facts in the evidence," is without merit, as appears by the instruction itself. The instruction clearly and properly left it to the jury to ascertain "what are the true facts herein," that is to say, the court told the jury that it was its province to ascertain what witnesses told the truth. Surely the court did not err in suggesting that some of the witnesses on one side or the other might have told the truth. The criticism is too trivial to deserve even as much...