*1 288
YI. Appellant complains that the verdict is in violation of Sec- 25, II, tion Article of Constitution, it because inflicts a cruel and punishment. say unusual punishment To is cruel and
unusual when it is within of the terms the statute which offense, defines say is to that the statute is uncon- long stitutional. As punishment as the inflicted verdict statute, is authorized lawful, it is unless provision statute violates that of the Constitution. provision against The punish Constitution cruel and unusual against ment is not directed so much amount or of the' duration punishment against as its character. This court has the case of held Alexander, 199, State v. 315 285 985, S. c. penalties Mo. W. l. that the for a violation 1923, page fixed Act of 236, Laws are 1923, not unusual cruel and as in violation of punish the Constitution. The statute, ment inflicted was within this ease the terms of since is not the statute the verdict is not for unconstitutional, that rea son. Appellant complains
VII. “give away” that the “sell” words jury. were not defined in an instruction Those as used words significance; in the indictment have no technical a sale gift liijuor, act, so far concerns physical disposition ^ie tb&t proper- 'saine as like of other ty. employed The words sense in are generally entirely are used a definition of same would be superfluous. 753; l. Krum, 400, 100 Mo. c. 13 W. S. [Cottrill (Mo.) Weisman, 740; Fleming, State v. 256 Brickell v. 281 S. S. W. W. 959, 960.] sufficiently specified
Appellant in his for new trial not motion has given regard giving errors in instructions.' Therefore those the court are not us review. before All judgment concur. The is affirmed. (2d) 866. Griffin, Appellant. S.
The W. State Horace May Two, 25, 1928. Division *2 Bennington-for H. K. appellant. Benie and G. I. *3 Gentry,
North Walter Attorney-General, Sloat, T. E. Special respondent. Attorney-Geneiul, Assistant *4 filed in Court *C. An wras the Circuit
H'ENWOOD, information charged operating appellant of with Lafayette County which by w7as a motor vehicle while in an intoxicated condition. The venue was changed to the Circuit County, Court of Pettis where he was tried and convicted. In accordance with the verdict the jury, of he was imprisonment sentenced to penitentiary in the years, for three and appealed. appears
It produced by from the evidence that, the State about Sunday four o’clock on 6, 1926, appellant afternoon, June and Harris Kemper Crowley and Miss garage Frances drove into the of Charles in Kufel Lexington, Missouri, touring big in. a Hudson automobile and had adjustment engine some of Kufel, made on the the car. garage keeper, testified that he did not notice one of the men driving ear, but in an con- both of them were intoxicated dition; “they it; acts; any just acted drunken man like like any man gets drunk; happy feeling.” like does when a he had afternoon, o’clock, Later in the when was re- between five and six it ported Lexington, Connors, deputy to of a Hud- Mike marshal Cunningham. son car had Mr. car, collided with Nash driven a a got pursuit Cunningham Connors in Nash with and started in car car, westerly of Highway the Hudson a direction No. and Lexington. about three They from Hudson car miles overtook the hour, running forty fifty miles Lexington, per and west between Crowley in driving Kemper front appellant and Miss with and Cunningham alo'ng car the side with drove the Nash seat him. When appellant stop, “to to con- car, Hudson commanded Connors “Oh, go Hell,” Appellant replied, to himself under arrest.” sider sufficiently to leave speed car and of the Hudson increased about,four five Shortly and or thereafter, car far in the rear. Nash Lafayette County, appellant attempted Lexington, in west of miles (west) around pass car, going direction a same Ford a with a avoiding collision curve, speed, low rate Hudson, rate at the west, drove the Dodge sedan, coming from catising car, both Ford per hour, fifty the rear of miles into (cid:127)of right side on the and turn over an embankment to slide down cars small women and three two men, two highway. There were of the up.” badly cut bruised and “They all were ear. the Ford children injuries apparent badly.” No “hurt small children of the One car. Hudson companions his suffered were scene Cunningham reached the minutes, Connors a few "Within oc- removing the ear, assisted Nash in the of the accident again, Con- When told wrecked cars. from both cupants “fighting arrest, appellant started under himself consider nors, *5 put one “I to Connors: Connors, said kicking” and cussing and and put you T will yon, D— C— and river your town from man his with appellant struck Connors months.” six inside of there Connors and while followed, mixup that general and in the pistol, arranging Kemper to take was Crowley and Miss back Lexington, to arrest, appellant under escaped, but was arrested later evening that Frick) (C. F. the sheriff in the home of uncle, his about one mile point from the where the accident occurred. Connors testified that appellant Kemper and Crowley and Miss all “were drunk,” three appellant and that crazy “was drunken mad.” Other for witnesses State, including E. Newton, Ii. driver Dodge of the sedan, and Beggs John and Batcliffe, John who were the Ford car, cor- appellant’s conduct, roborated Connors as to and said appellant that Crowley Kemper and and Miss were intoxicated. Newton, Beggs and they liquor appellant’s said smelled on Batcliffe and breath, Newton whiskey.” Beggs said “it smelled like further said he that “once (appellant) get gun car a reached back to and (Con- him told nors) appellant kill he would him.” Ratcliffe said Kemper and “staggering Frick, sheriff, wrere around” after accident. was “intoxicated” him, that when he testified arrested about after the accident. one hour behalf, length and Appellant took the stand his own testified Sunday in question, afternoon that, said he from lie on drove Lexington Kemper Crowley with and Miss in Hud- to Richmond they garage; when took car to not with them car, son but was Lexington, started joined again, when west out them that he through city limits and “about a mile Kemper and drove the car began driving; (appellant) that he started Myrick,” where he west of pretty sharp “a curve” and ran into rear car on around the Ford the'Dodge way of getting sedan out car, of the Ford direction; driving that vras opposite he from approaching was hour,” struck the Ford an when he thirty-five miles “not over car^, any.in- sober,” not had drink of and had “perfectly was that he Connors and tried clay; that he kicked during that toxicating liquor him, Connors arrest because undertook to get away, Connors when hurt” and and he “was arrest, because for his had no warrant developed, on It was also around.” jerked to be stand “couldn’t examination, driving on the car Kemper was that, when his direct struck the fenders their car fenders on Lexington, the Drive in Oliffe damage stop, because no they did not car, on another On cross- necessary stop. it was think they did not done examination, Richmond, convicted had been that he admitted he Lexington for and in assault, 'weapons and carrying concealed f.or assault. appellant’s substantially same testimony Kemper’s Miss things, he said Among other in all particulars. drinking intoxicants been had not Crowley were sober clay of accident.
294 appellant’s by Driskell, marriage,
Mrs. Claude aunt testified that home, immediately was her sober when came to after the accident.
I.It is contended that the evidence is insufficient the issue of find intoxication. We no merit in this Six reputable contention. including
witnesses, deputy Lexington marshal of sheriff of county, and the testified that appellant was in an intoxicated condition. of Three these wit- liquor nesses smelled on his breath, and one of them said whiskey.” “it smelled handling like Ilis reckless high- of a powered a high automobile, speed, public rate of on a highway, and his bold an law, strong defiance of officer of the furnish support opinions for expressed by all of displayed these He witnesses. a “happy feeling” garage. at the He was “crazy drunken mad” when the wreck and arresting arm of law interfered with his joy “staggering finally, ride. And he was around” when the hour reckoning of typical arrived. Such are exhibitions of the different stages of person of and of intoxication the actions intoxicated an un der different circumstances. is a of knowledge, This matter common among laymen experts. as as And repeatedly well this has court may by held that the fact of intoxication be shown of evidence this 741; Reifsteck, Fitzpatrick, character. 295 S. W. v. State [State 905; 267 W. 259 S. Hatcher, evidence, S. W. State The 467.] abundantly conviction, as a is sufficient to sustain this whole, charge jury is no foundation in the record for the that the there was by passion Manifestly, jury was prejudice. impressed moved gravity appellant’s conduct, and, reason, for that rwith of assessed against him. of punishment assessing While the matter heavy punishment jury court, left to the trial for crime is within hesitancy statutes, we prescribed by saying have no the limits fully jury warranted the facts this that action n 1 case. v ..if trial, for “that complaint made, in motion a new II.The is testimony to introduce show- permitting the State the court erred charged with other distinct ing two that defendant numbers 15912 and 15914.” offenses in cases separate testimony complaint the record. This We n0 disregarded. therefore, be will, ground on the it mis- is attacked No.
III.Instruction punishment range for the offense jury directed the charged. provides The any person guilty statute who is found punished by imprisonment this offense “shall be exceeding peniteiltiary years a term not or five jail county exceeding confinement for a term not year, one byor exceeding ($100) fine not one dollars both hundred such *7 27 imprisonment.” (g) fine and 29 (c), and Sec. 1921 Laws [Sec. (1st Sess.), pp. Ex. 103 and 105. Italics This instruction ours.] jury, they if guilty, directed the found defendant the to “assess his punishment in imprisonment Penitentiary the State for a term by years, imprisonment less than two nor than or in not more five county jail year, the one a fine not more than of not more than imprisonment.” (Italics one such fine and hundred dollars or both ours.) says 3698, 1919, person Section Revised Statutes “no imprisonment penitentiary any shall in case be to in the sentenced ours.) any years.” (Italics two for term than It follows that less instructing jury court to no error was in as committed minimum, imprisonment though penitentiary, even in the statute 130 question expressly thereto. v. Scholl, not refer does [State Mo. 396, S. W. 968.] assignments relating of error to the admission
IV. Other jury to the are given to instructions exclusion of evidence specify not the matters. general character do nothing present assignments complained of. Such 1925, Sec. Laws appeal. for [New review W. Standifer, 289 S. 859;W. 289 S. State 198; Murrell, State p. 856.] ap- against jury prejudiced is that the
V. It also contended State, in the made for the of counsel pellant certain remarks fol- contains the a new trial motion for argument The of the ease. this connection: lowing assignments of error in Prosecuting reprimanding the in not “6. That the court erred Prosecut- said discharging jury when Couey, and Attorney, E. W. 'that to the effect jury to the ing Attorney made the statement driving an guilty of making a man law Legislature pass should mur- guilty of, defendant, intoxicated, like the automobile while ’ stating jury to the and in further to that der, or effect words family my I want defendant, or this man this substance 'to convict highway.’ public driving upon a when to safe be reprimand Prosecut- refusing to erred in That the court “7. discharg- in not Skelton, and County, Mr. Lafayette ing Attorney case arguing said Attorney Prosecuting ing jury when said ' de- this wanted That following remarks: jury made to the conviclod so fendant record,’ that it will be sixth against conviction his in making the further argument statement in his to the jury, all objections over the of the defendant, (Mr. Skelton) to-wit: : say ‘I gentlemen to you, of the jury, without fear contradiction, any goes man who on our highway and drives a car at a furious of speed, rate in an condition, potential intoxicated is a murderer.’ in making And other detrimental tending remarks prejudice against jury defendant.” The record shows that objected when these remarks were to, the court cautioned counsel for “stay the State to record,” remarks withdrawn, were and counsel requested no part further action on the of the court. While some of the remarks complained improper, were hardly could be said to have left any prejudicial jury, effect on the being after withdrawn. Whether or not improper addressing of counsel, remarks are jury, suf ficiently prejudicial question constitute reversible error is a must, particular case, in each be considered in connection with the nature charged, of the offense the facts and circumstances in evi *8 dence, and all trial, including' argument of the incidents of the general of defending conduct counsel. Harmon, [State In 400, S. W. l. c. and eases this instance, we do not think cited.] objectionable such remarks were of a character as to have justified discharging jury; trial court in nor such, were reversing opinion, justify judgment. this court our as to verdict are both
The information sufficient form and appearing record, judg- No error substance. reversible Higbee Davis, (7(7., concur. ment is affirmed. Henwood, C., foregoing opinion is
PER CURIAM:—The All judges concur. opinion the court. adopted as the (2d) Appellant. 915. S. W. Williams, The State Cleo May Two, 1928. Division