State v. StewartState v. Stewart
- Reporters:
- , ,
- Before:
- Davis, Daues, Becker, Nipper (per curiam)
2. —: —: —: Special Judge Refusing to Serve When Elected: Statutes: Construction.
3. —: —: —: Judge of Another Circuit Designated: Effect.
4. —: —: —: —: Statute: Inoperative Where Only Two Attorneys Qualified to Vote Were Present.
5. —: —: Appointment of Judge of Another Circuit to Try Case: Legal and Proper. Where the regular judge conferred with the judge of another circuit before defendant‘s application for a change of venue had been filed, but did not pass on the application until presented in open court, and until the attorneys were given opportunity to agree upon a special judge, after which time the regular judge requested such other judge to hold court, held that the designation of such other judge to hold court in this instance was proper and legal.
6. INDICTMENT AND INFORMATION: Intoxicating Liquors: Charging Possession Without Specifying Particular Kind Possessed: Sufficient. An indictment charging possession of intoxicating liquors without specifying the particular kind possessed, but which follows the language of the statute, held sufficient inasmuch as under
7. INTOXICATING LIQUORS: Evidence: Conclusions: Testimony That Drink of Whiskey Made Witness Drunk: Competent. In a prosecution for the possession of intoxicating liquor, a witness was properly permitted to testify that he took a drink of such whiskey and it made him drunk.
8. —: —: Sufficiency. In a prosecution for possessing intoxicating liquor, testimony of a witness that he took one drink of such liquor and that he would call it whiskey and that he knew that the
9. APPELLATE PRACTICE: Instructions: Motion for New Trial: Failure to Complain of Instruction in Motion for New Trial: Right to Complain on Appeal Not Saved: Failing to complain of the court‘s instruction in his motion for new trial, defendant failed to save the right to complain on appeal.
10. INSTRUCTIONS: Intoxicating Liquors: Instruction Permitting Jury to Find Defendant Guilty if he Possessed any Kind of Intoxicating Liquor: Not Erroneous: An instruction to find the defendant guilty if he possessed any kind of intoxicating liquor, without limiting it to whiskey, not erroneous, for under
*Headnotes 1. Judges, 33 C. J., Section 214; 2. Judges, 33 C. J., Section 214 (Anno); 3. Judges, 33 C. J., Section 220; 4. Judges, 33 C. J., Section 220; 5. Judges, 33 C. J., Section 221 (Anno); 6. Intoxicating Liquors, 33 C. J., Section 438; 7. Criminal Law, 16 C. J., Section 1539; Intoxicating Liquors, 33 C. J., Section 529; 8. Intoxicating Liquors, 33 C. J., Sections 505, 543; 9. Criminal Law, 17 C. J., Section 3351; 10. Intoxicating Liquors, 33 C. J., Section 550.
Appeal from the Circuit Court of Lincoln County.—Hon. Allen W. Walker, Special Judge.
AFFIRMED.
Howell & Jackson and Creech & Penn for appellant.
(1) (a) The court was not authorized to grant a change of venue and call in a special judge to try the case prior to the time defendant had filed his petition for same. Autenrieth v. Schaff, 271 Mo. 248. (b) The law contemplates that defendant‘s petition for change of venue shall be heard and acted upon in court in term time, and that defendant has the right to consult and agree with the prosecuting attorney upon a member of the bar to try the case, to be approved by the court.
Grover C. Huston, Prosecuting Attorney, and Derwood E. Williams, of Counsel, for respondent.
(1) (a) The change of venue in this case was granted by the court while in regular session on the 12th day of March, 1923, upon the application of the defendant, which was duly filed in said cause, by the defendant the 12th day of March, 1923. Title Guaranty Co. v. Drennon, 208 S. W. 474; Stegman v. Berryhill, 72 Mo. 307; Jewett v. Railway, 38 Mo. App. 48; State v. Church, 199 Mo. 605;
DAVIS, C.—By an indictment filed on April 15, 1922, by the Grand Jury of Lincoln county, defendant was charged in the first count with selling about one gallon of intoxicating liquor to Louis Hutchens; and by the second count with possessing about one gallon of intoxicating liquor. On the trial the first count was dismissed, the jury returning a verdict on the second count against defendant, and assessing his punishment at thirty days in the county jail and a $300 fine. From the judgment entered thereon defendant appealed.
The State‘s evidence tends to show that on a certain Sunday in August, 1921, Louis Hutchens, the owner and operator of an automobile, with others seated there-
Witness Tommy Owens, for the State, testified as follows: “Q. Did you taste or drink any of the contents of this jug? A. I took one drink, yes, sir. Q. What did you drink? The Court: He may state, if he knows, what it was. A. I would call it whiskey. Q. Anybody else in the crowd drink it? A. Yes, sir. Q. Who? A. Oh, they was five boys—four boys. Q. What effect, if any, did the whiskey have on you? A. None.”
John Sweeney, for the State, testified: “Q. What effect, if any, did the contents of that jug have on the parties in that car? A. It had none. Q. What was it, what did it taste like? A. Well, I don‘t know, sour; I don‘t know what it was; it just tasted like nothing; never tasted nothing like it. Q. Did it have any kick at all? A. No.”
Witness Tommy Owens was permitted to testify, in substance, that it made several of them (the boys) drunk.
Neither the jug nor the alleged whiskey mentioned in the evidence was produced or identified at the trial, nor was there any evidence that it was ever gauged or analyzed.
One Baker, a Federal Prohibition Agent, was permitted to testify in substance: That a liquid containing more than one-half of one per cent of alcohol was intoxicating, and that the lowest per cent by volume which distilled whiskey contains is twenty-five per cent.
Witness Owens, being recalled, was permitted to testify that one drink of the liquor in the jug made Louis Hutchens drunk.
The facts relative to the change of venue appear as follows: The cause was set for trial in the Lincoln county circuit court on March 12, 1923. On March 7, 1923, defendant served notice on the prosecuting attorney that he would on March 12, 1923, file an application for a change of venue on account of the bias and prejudice of Hon. Edgar B. Woolfolk, Judge of the Lincoln county circuit court, a copy of which application for change of venue was attached to said notice at the time it was served on the prosecuting attorney. On March 8, 1923, the prosecuting attorney, in the forenoon, appeared at the office of defendant‘s attorneys, and notified them orally that Hon. Edgar B. Woolfolk had called Hon. Allen W. Walker of the Ninth Judicial Cir-
On March 12, 1923, defendant filed his application for a change of venue, in due substance and form, which the court sustained.
On March 12, 1923, after the filing of the application for a change of venue by defendant, the following appears in the Bill of Exceptions, to which defendant excepted: “The application for change of venue is granted, and the prosecuting attorney having failed and refused to agree in writing or otherwise with the defendant and his attorney in the cause to elect some attorney at law who possesses all of the qualifications of a circuit judge, as special judge, to sit in the trial of this case, and the prosecuting attorney of Lincoln county, Missouri, failing and refusing to consent or to agree with the defendant or his attorneys to the election of a member of the bar of Lincoln county as special judge to try this cause, I, Edgar B. Woolfolk, Judge of the circuit court of Lincoln county, Missouri, call in Hon. Allen W. Walker, Judge of the Ninth District of the State of Missouri, to sit in the trial of this cause, and the time of the cause is set for 10:30 a. m. o‘clock this day.”
The finding of the court with respect to a special judge is as follows: “And the prosecuting attorney of Lincoln county, Missouri, failing and refusing to consent or to agree with the defendant or his attorneys to the election of a member of the bar of Lincoln county as special judge to try this cause,” etc. We construe the finding of the court immediately preceding as referring to the special judge mentioned in
Says the defendant, however, the defendant had the right to have the election of a special judge held to try the case, under
Again, the record shows that there were seven attorneys present in court at the time the change of venue was granted, to-wit, Messrs. Burns, Sutton, Jackson, Penn, Creech, Huston and Williams, of whom Messrs. Jackson, Penn and Creech were present representing defendant, and Messrs. Huston and Williams were present representing the State, all attorneys of record in
In 33 C. J., page 1031, sec. 220, it is said: “An attorney concerned in the case cannot vote, but it has been held, in order to disqualify him, he must be of counsel at the time the election is held,” citing State v. Sanders, 106 Mo. 188, 17 S. W. 223.
In the Sanders case (l. c. 193), supra, it is said: “Moreover, the agreed statement does not show that he was counsel in the case when the election was held, which is necessary to a disqualification under the statute.”
In Low v. State, 111 Tenn. 81, 78 S. W. 110, it is held that, where the election of a special judge is to try a certain case or cases, the entry should show that the attorneys therein interested took no part in the election.
We, therefore, conclude that, as Messrs. Burns and Sutton were the only qualified voters present, there were not five attorneys of the court present qualified to vote, as contemplated by
We think the record shows that defendant‘s application for a change of venue was heard and acted upon by the court in court time; and that the record shows that thereafter defendant was afforded an opportunity to consult and agree with the prosecuting attorney upon a member of the bar to try the case after the application for a change of venue had been filed, presented to the court, and sustained. It is true that the judge conferred with the judge of another circuit before the application for a change of venue had been filed, and that he had such judge present; but it is evident that he did not pass upon the application for a change of venue until it had been presented in open court and until the attorneys were given an opportunity to agree upon a special judge; nor did he request the judge of another circuit to hold court and try the case until such things happened. We think
II. Defendant contends that the indictment should have been quashed, because it charged in general terms the possession of intoxicating liquors without specifying the kind or character of liquor. It charged in part that “One Cassander Stewart did then and there wilfully and unlawfully have and possess a certain quantity of intoxicating liquor, to-wit, about one gallon of intoxicating liquor,” etc. Generally speaking, the possession of intoxicating liquor is now unlawful.
In People v. Sweetser, 46 N. W. 452, it is said:
“The statute uses the comprehensive phrase intoxicating liquors. That includes all kinds of liquors that will produce intoxication, and makes the sale of all alike unlawful; and it matters not what particular kind is sold, the offense is the same. Neither can it be material to the defense except that it might close a very wide door through which otherwise the guilty might escape. Were the prosecution required to allege the specific kind of liquor, it might be very difficult to prove it in these days of adulteration and villainous concoctions.”
In a number of foreign jurisdictions it has been held that an indictment for unlawfully selling intoxicating liquor need not aver or describe the particular kind of liquor sold. [State v. Dorr, 19 Atl. 861; People v. Walbaum, 46 N. W. 452; State v. Callahan, 28 N. E. 717; State v. Griebel, 211 Pac. 331; State v. Sullivan, 166 Pac. 1123; State v. Duff, 94 S. E. 498; Mayabb v. State, 255 S. W. 189; Tucker v. State, 251 S. W. 1090; Gavalis v. State, 135 N. E. 147; Massey v. U. S. 281 Fed. 293; State v. Wyman, 13 Atl. 47; 23 Cyc; 228, 232; Booth v. U. S., 197 Fed. 283; Black on Int. Liq., sec. 467; Commonwealth v. Conant, 72 Mass. (6 Gray) 482; Commonwealth v. Ryan, 75 Mass. (9 Gray) 137; State v. Downs, 116 N. C. 1064; State v. Teahan, 50 Conn. 92; State v. Whalen, 54 Iowa, 753; Foreman v. Hunter, 59 Iowa, 550; State v. Brooks, 33 Kas. 708.]
Defendant relies on State v. Cox, 29 Mo. 475, as authority for holding the indictment insufficient. We agree with the statement of the court in Edwards v. Brown, 67 Mo. 377, in referring to State v. Cox, supra, to-wit: “It is not clear, from the reported opinion in that case, what was the precise defect in the indictment.” The same criticism was made in State v. Sills, 56 Mo. App. 408, the court holding the information insufficient, however, because that case could not be distinguished from the Cox case. The objection made to the information in the Sills case, charging defendant with unlawfully selling intoxicating liquors in less quantity than three gallons, was that it fails to state in what quantity the liquor was sold.
State v. Ryan, 30 Mo. App. 159; State v. Baldwin, 56 Mo. App. 423; State v. Gibbs, 129 Mo. App. 700, 108 S. W. 588; State v. Cragg, 132 Mo. App. 461, 111 S. W. 856; State v. Clinkenbeard, 136 Mo. App. 189, 115 S. W. 1059, and State v. Russell, 189 Mo. App. 677, 175 S. W. 278, discuss the objection that the quantity of the liquor sold was not stated in the indictment, and are therefore not in point, for the indictment in the present case charges defendant with possessing a certain quantity of intoxicating liquor, to-wit, about one gallon, etc.
The question before us involves the charge of possessing intoxicating liquor without specifying the particular kind possessed.
In State v. Melton, 38 Mo. 368, the objection to the indictment was that it did not specify the particular kind
In State v. Rogers, 39 Mo. 431, the defendant was charged with selling spiritous and alcoholic liquors without first taking the oath and giving the bond prescribed by statute, the court holding that it was unnecessary to name or specify the particular kind of liquor sold.
In State v. Kurtz, 64 Mo. App. 123, the charge was selling intoxicating liquors on Sunday. The objection that the information did not specify the kind of liquor was overruled.
In State v. Blands, 101 Mo. App. 618, 74 S. W. 3, an affidavit charging the sale of intoxicating liquor was held sufficient, citing Kelly‘s Crim. Law, sec. 1074, and State v. Melton, 38 Mo. 368.
In State v. Roehm, 61 Mo. 82, the defendant was charged with selling fermented and distilled liquors on Sunday. The court held the indictment followed the language of the statute in describing the offense, and that was sufficient.
In State v. Braun, 83 Mo. 480, the indictment charged defendant with unlawfully selling intoxicating liquor. The Attorney General called attention to State v. Cox, 29 Mo. 475. The court said: “Following the authority of State v. Roehm, 61 Mo. 82, the indictment must be held sufficient.”
In State v. Burk, 151 Mo. App. 188, 131 S. W. 883, the defendant was charged, under local option laws, with unlawfully selling distilled, fermented and intoxicating liquor, to-wit, one bottle of beer. The court said: “It was not necessary that the information should specify the kind of liquor sold. If the information had made the charge that defendant sold intoxicating liquor, it would have been sufficient within stating the kind of liquor sold. [State v. Blands, 101 Mo. App. 123.] The charge of a sale of intoxicating liquor, under this statute, if the information had followed the language of the
It is evident our statute, regarding intoxicating liquor, has abolished distinctions, and that if there ever was any virtue in defendant‘s contention it does not now exist. The crime is the unlawful sale or possession of intoxicating liquor, whether heretofore denominated whiskey, wine or beer, and embraces every kind and description. The punishment prescribed by statute falls alike on all caught violating its terms, whether they sell or possess whiskey, wine, beer, or other kind of intoxicating liquor. It would avail defendant nothing, or tend to inform him of the crime charged, by specifying or naming the liquor. If the liquor contained one-half of one per centum of alcohol by volume and was potable and capable of being used as a beverage, an indictment charging the possession of intoxicating liquor, without naming it, was sufficient to inform him of the crime charged and would operate as autrefois convict, or autrefois acquit. Inasmuch as the possession of all intoxicating liquors are prohibited, and inasmuch as the indictment follows the language of the statute, we think it sufficient.
III. Defendant complains of the action of the trial court in permitting witness Owens to testify that Owens took a drink of this whiskey and it made him drunk, because it invaded the province of the jury and was a conclusion.
In Limbaugh v. Forum Lunch Co., 258 S. W. 451, it is held that a witness may state whether a person was intoxicated and the extent of his intoxication. We do not think the court committed any error in permitting the witness to so testify. [Fulton v. Met. St. R. Co., 125 Mo. App. 239, 102 S. W. 47; Kirchof v. United Rys. Co., 155 Mo. App. 70, 135 S. W. 98.]
IV. Defendant also complains of the action of the trial court in refusing to sustain a demurrer to the evidence. Defendant says that the witness Owens’ statement that he took one drink from the jug and that he would call it whiskey, was insufficient evidence upon which to base a conviction. We do not agree with defendant‘s contention, however, for the witness by saying, “I would call it whiskey,” was giving his best opinion as to what the liquid was. Moreover, the witness stated that he knew the whiskey in the jug made several of them (the boys) drunk, and that Louis “Hutch” took a drink of this whiskey and it made him drunk. This evidence was sufficient in our opinion upon which to predicate the verdict of guilty by the jury. We do not think that State v. Weagley, 240 S. W. 822, State v. Morrison, 240 S. W. 822; State v. Craft, 246 S. W. l. c. 931, or State v. McIntyre, 256 S. W. 141, are applicable to the facts here.
V. Defendant complains of instruction No. 2 given for the State. The record shows that this instruction was given by the court of its own motion. Defendant‘s motion for a new trial does not complain of instruction No. 2 as the court‘s instruction, but says that the court erred
The Commissioner recommends that the judgment be affirmed.
PER CURIAM:—The foregoing opinion of DAVIS, C. is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Daues, P. J., and Becker and Nipper, JJ., concur.