The State v. White

• Decision Date: 20 December 1926
• Docket Number: 27070
• Citation: 289 S.W. 953,316 Mo. 210
• Parties: The State v. Albert White, Appellant
• Court: Missouri Supreme Court

289 S.W. 953

316 Mo. 210

The State v. Albert White, Appellant

No. 27070

Supreme Court of Missouri

December 20, 1926

Appeal from Christian Circuit Court; Hon. Fred Stewart Judge.

Affirmed.

North T. Gentry, Attorney-General, and H. O. Harrawood, Special Assistant Attorney-General, for respondent.

(1) In his motion for a new trial, defendant complains that the judgment is against the law and against the evidence. The evidence was sufficient to take the case to the jury. The weight is for the consideration of the jury. This assignment is too general and indefinite. State v. Jackson, 283 Mo. 24; State v. Mann, 217 S.W. 69; State v Rowe and Sanders, 271 Mo. 94; State v. Salleck, 199 S.W. 130; State v. McBrien, 265 Mo. l. c. 604; State v. Scott, 214 Mo. 261. (2) Defendant complains of the admission in evidence of a crime committed after the commission of the crime charged in the information. Defendant interposed no objection to this evidence. Afterward defendant's counsel went into the matter himself on re-direct examination, bringing out the fact thereby that defendant was in the possession of whiskey at the time of the alleged sale. He cannot now complain of his own errors. (3) The affidavit filed in defendant's motion for a new trial, does not show bias and prejudice upon the part of the court. The court was acting within the scope of its authority and could have disregarded the jury's request for light punishment had such request been made. Sec. 4048, R. S. 1919; In re Bowman, 7 Mo.App. 568.

Walker, P. J. Blair, J., concurs; White, J., concurs in the result.

OPINION

WALKER

The defendant was charged by information in the Circuit Court of Christian County with having sold hootch, moonshine or corn whiskey. Upon a trial he was tried, convicted and sentenced to two years' imprisonment in the penitentiary. From this judgment he appeals.

On July 5, 1925, four young men went out from Ozark in a car to the residence of the defendant. Upon their arrival two of the party gave the defendant $ 1.50 each for whiskey. Upon receiving the money defendant, with one of the parties, went into the woods near by and returned with a quart of moonshine or corn whiskey and gave it to the young men, who drank a portion of it and became drunk. About a week later these young men, accompanied by the sheriff and a deputy, returned to the defendant's house. Brownfield, one of the parties, asked the defendant if he had any whiskey. He replied that he had, but could not then go and get it, but would do so later. Defendant asked Brownfield if the whiskey he and the others had previously gotten was good stuff. The sheriff testified that during the month of July he found two half-gallon jars of whiskey hidden in the woods about one hundred and fifty yards from the defendant's residence.

The defendant denied having sold whiskey, but on cross-examination admitted having whiskey in his possession in July, 1925, and for several months prior thereto. Witnesses testified to the good reputation of the defendant.

A demurrer to the evidence was overruled. No brief has been filed upon behalf of the defendant. The motion for a new trial is of the most general nature.

I. The contention that the court should have sustained a demurrer to the evidence is without merit. Proof of the possession and sale of the liquor was direct and positive. No fact or circumstance was offered to refute it, except the unsupported testimony of the defendant. The jury saw fit to believe the witnesses for the State and were well within their province in so doing.

II. The admission of the evidence concerning the second visit of the same parties and others to the residence of the defendant when he admitted he had whiskey in his possession was not error, especially when it was shown upon his cross-examination that such possession was continuous and existed during the time he was charged in the information to have sold the same.

III. There was no prejudice indicated by the trial court...