State v. SteelmanState v. Steelman
The evidence offered by the State shows that on March 27, 1927, appellant was seen “pretty well intoxicated” at Bryant Camp, near Hartshorn, in Shannon County. He was first discovered when attempting to drive a team and wagon across some railroad tracks and “seemed to be hung up in the tracks with his wagon.” Shortly thereafter, when arrested by a deputy sheriff, he was “coming down the railroad with a bottle in his hands, waving it around, and a knife, and talking pretty loud and using some pretty bad language.” The deрuty sheriff took charge of appellant‘s bottle of liquor and immediately turned it over to the sheriff of the county. Some of the residents of the neighborhood said that when they saw appellant in his wagоn he had the bottle of liquor in his pocket. When asked if appellant made any statement concerning the bottle of liquor, the sheriff testified:
Both the sheriff and his deputy said they examined the contents of the bottle and that it was “moonshine, corn whiskey.” The bottle of liquor was offered in evidence and handed to the jury for their examination.
Appellant, who was not represented by an attorney at the trial, took the stand and his testimony in full is as follows:
“I found this whiskey where the hogs had rooted it out away from a tree, I wouldn‘t call it transporting, I ain‘t been transporting whiskey, I just drank a little too much and got too drunk, and I ain‘t in the habit of doing that; and I would like for the court to forgive me for this and I will let it alone from this on.”
On cross-examination, appellant admitted that he had been previously convicted “on two different charges” in the Circuit Court of Shannon County, but the nature of these charges was not disclosed.
E. D. West was offered as a character witness for appellant. He said he had known appellant for “about a year;” that appellant had “always been a gentleman;” and that he had never known “of him drinking a drop.”
Appellant has filed no brief and we now look to his mоtion for a new trial for prejudicial errors assigned to the trial court.
I. The motion asserts that appellant was ignorant of court procedure and unable to employ counsel at the timе of his trial, and that he would employ counsel and have his case properly presented to a jury, if granted a new trial.
The record shows that the original complaint, upon which this charge is basеd, was filed before a justice of the peace on March 27, 1927, and that appellant waived a preliminary hearing; that on May 6, 1927, the information in this case was filed in the circuit court; and that on May 10, 1927, after both parties had announced ready for trial, the following proceedings were had in the circuit court:
“Defendant not represented by counsel. The court inquired of defendant if he had counsel, and he stated that he did not, that he
It is apparent at once from the language of this statute that before appointing or assigning counsel for a defendant charged with a felony the trial court must find three things: first, that the defendant is without counsel; second, that he has requested the court to appoint counsel for him; and third, that he is unable to employ counsel. [State v. Terry, 201 Mo. l. c. 701, 100 S. W. l. c. 434.] While, as above indicated, it is shown by the record in this case that aрpellant was without counsel and, also, that he requested the court to appoint counsel for him, the record fails to show that he was unable to employ counsel. On the contrary, it appears that when appellаnt requested the appointment of counsel, four members of the Shannon County Bar, or some one or more of them, informed the court that appellant was financially able to employ сounsel and that it was the practice of defendants “in this class of cases” in Shannon County to get the benefit of counsel by appointment and without compensation, regardless of their ability to hire counsel. It further appears that appellant did not deny, directly or indirectly, the statements made by these members of the bar, but, thereupon, offered to plead guilty,
II. The challenge of the sufficiency of the evidence is without merit. Shortly after his arrеst, appellant voluntarily told the sheriff that he ”put the whiskey in his wagon and drove back until he got near the team camp;” also, that ”about the time he got to the team camp he put it in his pocket.” (Italics ours.) These аnd other statements made by appellant were related by the sheriff in his testimony. The liquor was shown to be “moonshine, corn whiskey” by direct and positive proof to that effect. The evidence prеsented a clear case for the jury and is sufficient to support the verdict. [Secs. 19 and 21, Laws 1923, p. 242; State v. Cardwell, 279 S. W. 99; State v. Bennett, 270 S. W. 295.] In view of the fact that appellant elected to testify in his own behalf and practically cоnfessed his guilt on the stand, no other verdict than the one returned by the jury could have been reasonably expected.
III. As another ground for a new trial appellant charges that the verdict of the jury was the result of prejudice against him. This complaint is without avail where, as in this case, there is nothing in the record upon which to base it. [State v. Helpley, 279 S. W. 701; State v. Renfro, 279 S. W. 702.] It is, doubtless, prompted by the punishment assessed. Aside from the question оf whether the jury should be criticized or commended for assessing a substantial punishment in this case, it must be remembered that the fixing of the punishment for crime is a legislative and not a judicial function. The punishment
IV. The other errors assigned in the motion for a new trial relate to the admission and exclusion of evidence and to given and omitted instructiоns on the law of the case. None of these assignments specify or point out the matters complained of and, for that reason, will not be considered. [Laws 1925, p. 198; State v. Standifer, 289 S. W. 856; State v. Murrell, 289 S. W. 859.]
We find no error, either in the trial proceedings or record proper. The judgment is affirmed. Higbee and Davis, CC., concur.
PER CURIAM:—The foregoing opinion by Henwood, C., is adopted as the opinion of the court. All of the judges concur.