Summary
In State v. McGinnis, 320 Mo. 228, 7 S.W.2d 259, 260 [4] one of the contentions was that the verdict was influenced by matters outside the evidence; the court held the testimony of one of the jurors was properly excluded.
Summary of this case from State v. McDanielOpinion
May 25, 1928.
1. CORN WHISKEY: Tasting or Smelling. Lay witnesses may identify hootch, moonshine or corn whiskey by their ordinary experiences in tasting or smelling it.
2. ____: Transportation: Sufficient Evidence. Positive testimony that the liquor in the jug was corn whiskey; that defendant claimed it and fought with his companions for its possession, and put what was left of it in his automobile and drove away with it, is sufficient evidence to sustain a conviction under a charge of transporting corn whiskey.
3. PUNISHMENT: Excessive. The fixing of the punishment for a crime is a legislative and not a judicial function; and when the punishment assessed by the jury is within the range prescribed by the statute, it cannot be adjudged to be excessive by an appellate court.
4. ____: ____: Passion and Prejudice. It cannot be ruled that the assessment of appellant's punishment at imprisonment for a term of three years for transporting corn whiskey was prompted by passion and prejudice on the part of the jury, or that they were influenced by his failure to testify in his own behalf and by matters outside of the evidence, in the absence of proof that they were so moved or influenced.
5. VERDICT: Impeachment. The verdict of the jury cannot be impeached by the testimony of a juror.
6. INFORMATION: Misjoinder: Cured by Verdict. A misjoinder of two offenses in the same information, namely, the unlawful transportation of corn whiskey in the first count and unlawful sale and giving away of said whisky in the second count, is cured by the verdict of guilty of unlawful transportation, where no objection to the misjoinder or to the evidence introduced in support of both charges is made, and the court does not instruct the jury on the second count and they make no finding on that count; and this is true whether the record be taken as a dismissal of or an acquittal under, the second count.
7. EVIDENCE: To Support Abandoned Account: Prejudice. Where the defendant was charged in the first count of the information with the unlawful transportation of corn whiskey, and with the unlawful sale and giving away of the same in a second count, and he did not raise the question of misjoinder, by demurrer, motion to quash or motion to elect, and made no objection to the evidence offered to support the second count, and the instructions submitted to the jury only the question of his guilt under the first count and they returned their verdict finding him guilty under the first count only, he is in no position to complain, in his motion for a new trial, or on appeal, that the jury were prejudiced against him by the evidence offered to prove the charge contained in the second count.
8. GENERAL ASSIGNMENTS: Review. General assignments of error relating to the admission of evidence, and to the instructions given, which do not specify with any degree of particularity the matters of which complaint is made, present nothing for review.
9. NEW TRIAL: Newly-Discovered Evidence: Same Witnesses. Affidavits of witnesses who testified at the trial, in which some of them state facts contradictory of their testimony, and others state facts about which they were not cross-examined by defendant's counsel at the trial, and which reveal on their face that the affiants want another chance to testify after their memories have been refreshed, fall far short of a showing of newly-discovered evidence; and where it is apparent that their testimony would not produce a different result on another trial, the action of the trial court in overruling a motion for a new trial based upon the affidavits will not be disturbed.
10. ARREST OF JUDGMENT. Motions in arrest of judgment have been abolished by statute (Laws 1925, p. 198) and no longer have any place in criminal procedure; but where such motion challenges the sufficiency of the information and verdict, those things will be examined on appeal, because they form parts of the record proper.
11. INFORMATION: In Language of Statute. An information charging defendant with the unlawful transportation of "hootch, moonshine, corn whiskey," which follows the language of the statute and covers all essential elements of the offense sought to be charged (Laws 1923, p. 242. sec. 21), is sufficient in substance and form.
12. VERDICT: As Charged. A verdict that "we, the jury find the defendant guilty as charged in the first count of the information." etc., is responsive to the issue submitted and sufficient in every particular, where only the charge set forth in the first count is submitted to them and it charges every essenial element of the crime.
Corpus Juris-Cyc. References: Constitutional Law, 12 C.J., Section 387, p. 884, n. 5. Criminal Law, 16 C.J., Section 1538, p. 751, n. 91; Section 2595, p. 1107, n. 28; Section 2720, p. 1193, n. 10; Section 2730, p. 1206, n. 95; Section 2750½, p. 1236, n. 50; 17 C.J., Section 3331, p. 56, n. 16; Section 3350, p. 89, n. 63; Section 3351, p. 90. n. 75. Indictments and Informations, 31 C.J., Section 551, p. 879, n. 80; Section 567, p. 883, n. 74. Intoxicating Liquors, 33 C.J., Section 452, p. 730, n. 59; Section 503, p. 759, n. 98.
Appeal from Morgan Circuit Court. — Hon. Henry J. Westhues, Judge.
AFFIRMED.
J.W. McClelland and Barney Reed for appellant.
(1) The testimony of Edmund Metcalf was improper, harmful and prejudicial to the defendant, and there is only one fair and just conclusion that can be reached therefrom, and that is that the defendant did not have a fair and impartial trial. The verdict was founded on conjecture and suspicion, was purely conjectural in its nature and arrived at by building one inference upon another to reach a conclusion, which is not permissible under the well-settled rulings of the laws. (a) Suspicions, however grave, are not of themselves sufficient to support conviction. State v. Ferrell, 248 S.W. 979; State v. Woodson, 175 Mo. App. 393; State v. Johnson, 234 S.W. 794; State v. Rutledge, 262 S.W. 718; State v. Counts, 234 Mo. 508; State v. Capps, 278 S.W. 695; State v. Tallo, 274 S.W. 466. (b) The trial court should grant a new trial for misconduct of the jury or jurors where the wrong cannot be established for appellate review. Bank of Malden v. Stokes, 280 S.W. 1055. (2) The information charges the felonious transportation of corn whiskey. The general instruction follows the information only as to hootch, moonshine and corn whiskey. The evidence utterly fails to show the transportation by the defendant of any hootch, moonshine or corn whiskey, and the finding of the jury that he did transport corn whiskey was contrary to the law and evidence. As to whether the defendant transported corn whiskey, either to the school grounds or from the school grounds, is purely conjectural, and to find him guilty at all would be wholly from circumstantial evidence, which in this case is wholly insufficient in law. "Circumstances must point to the guilt of the accused so clearly as to exclude every reasonable hypothesis of innocence, and his guilt must be shown to the satisfaction of the jury beyond a reasonable doubt, it not being enough that there be strong suspicion or even probability of his guilt." State v. Buckley, 274 S.W. 74; State v. Ruckman, 253 Mo. 487; State v. Adkins, 222 S.W. 431; State v. Singleton, 243 S.W. 147; State v. Lee, 272 Mo. 121.
North T. Gentry, Attorney-General, and H.O. Harrawood, Special Assistant Attorney-General, for respondent.
(1) The evidence of defendant's guilt, while not very clear, was of a substantial nature and sufficient to take the case to the jury. Where there is substantial evidence of defendant's guilt, this court will not attempt to weigh such evidence, as that is the province of the jury. State v. White, 289 S.W. 953; State v. Cannon, 232 Mo. 215; State v. Mitchell, 252 S.W. 384; State v. Loftis, 292 S.W. 29; State v. Perry, 267 S.W. 832; State v. Yandell, 201 Mo. 662; State v. Morris, 279 S.W. 141. (2) The motion for new trial, based on the grounds of newly-discovered evidence is without merit, as all the parties mentioned as being able to give new testimony except one (Marion Taylor) were present and testified at the trial, and there is nothing to show why this evidence was not available at the time the trial was had. State v. Gibbs, 186 S.W. 986; State v. Clark, 203 S.W. 627; State v. Emmons, 225 S.W. 894; State v. Hayden, 190 S.W. 311; State v. Arnett, 210 S.W. 82. (3) The verdict of the jury cannot be impeached by an affidavit of one of the jurors, nor by evidence of others as to statements of a juror after his discharge. Bank of Malden v. Stokes, 280 S.W. 1055; McFarland v. Bellows, 49 Mo. 311; Philips v. Stewart, 69 Mo. 149; Hoffman v. Dunham, 202 S.W. 429; Evans v. Klusmeyer, 256 S.W. 1036; Proffer v. Miller, 69 Mo. App. 501; State ex rel. Rogers v. Gage Bros. Co., 52 Mo. App. 464.
By an information filed in the Circuit Court of Morgan County, appellant was charged with the unlawful transportation of intoxicating liquor commonly called "Hootch Moonshine Corn Whiskey" in the first count, and with the unlawful sale and giving away of the same in the second count. The jury found him guilty as charged in the first count and assessed his punishment at imprisonment in the penitentiary for three years. He was sentenced accordingly, and appealed.
The evidence produced by the State shows that the closing exercises of the Coffey School, in Morgan County, were held on the afternoon of April 22, 1926, and that, while the entertainment was going on, appellant and several other young men interested themselves in drinking liquor from a half-gallon jug, on the school grounds and in the vicinity thereof. It does not appear, by direct evidence, who took the jug of liquor there, but it does appear that appellant claimed it, and that, late in the afternoon, he put it in his Ford roadster and drove away. It further appears that appellant and his nephew, Roy McGinnis, became intoxicated, and that both of them accused Pete Taylor of attempting to steal the whiskey and engaged in a fight with him as a result of such accusation. As to the character of the liquor in the jug and appellant's actions in connection with it, Edmund Metcalf testified as follows:
"Q. Did you see him when he left? A. Yes, sir.
"Q. What, if anything, did he put in his car before be went away? A. A half gallon jug.
"Q. Where did he get it? A. Well, he claimed on the start that he had it hid. He accused Pete Taylor of stealing it and this boy was drunk and forgot where he had it and my brother found it up on the hill, there, and Earl McClure and Louis Hildebrand was watching it. When he came down there he said something like `you damned son of a bitch and took the jug away from him and put it in his car and left.
"Q. Do you know what was in the jug? A. Whiskey.
"Q. What kind of whiskey? A. Corn whiskey, I guess. That is the only kind we have got.
"Q. Was it white? A. Yes, sir.
"Q. Well, the jug that you saw him take away with him — did you examine into the jug to see what was in it? A. I did. I seen the jug before ever he got it.
"Q. Did you get a drink out of it? A. No, I didn't drink any of it, but I smelled of it and poured a little of it out — to see what it was."
When interrogated along the same line. Homer Metealf gave the following testimony:
"Q. State, later on in the day, if anyone claimed that whiskey as his own? A. Arthur McGinnis, and he took it home with him late in the evening.
"Q. (By THE COURT): Was there any whiskey left in it that night? A. There was some left when they left with it."
Louis Hildebrand, Roy McGinnis and Luther Gee were the only witnesses who took the stand in behalf of appellant.
Louis Hildebrand said he did not know who took the whiskey to the schoolhouse. When asked if appellant took any whiskey away from the schoolhouse, he said: " I don't remember, now, whether he did or not." He further testified that Roy McGinnis said the whiskey belonged to Homer Metcalf. When cross-examined, he admitted that appellant lived in his home and that he and appellant left the schoolhouse toghether in the Ford roadster.
Roy McGinnis said he did not know who brought the whiskey to the schoolhouse, nor who took it away, but admitted that he saw Homer Metcalf put the jug in appellant's car. On cross-examination, he further admitted that appellant "was there by the car" when Homer Metcalf put the jug in the car, but insisted that Homer Metcalf "said it was his'n." And he further admitted that both he and appellant had a fight with Pete Taylor over the whiskey.
Luther Gee testified that he had visited Louis Hildebrand's home, where appellant lived, and had never seen any whiskey nor bought any whiskey there.
I. Counsel for appellant contend with great earnestness that the evidence is not sufficient to sustain this conviction. We see no merit in this contention. Both the character of the liquor and the transportation of the same by appellant were Sufficient established by positive testimony. Referring to the Evidence. liquor in the jug, Edmund Mctcalf said he "smelled of it and poured a little of it out — to see what it was." and that it was "corn whiskey." This court has repeatedly held that lay witnesses may be permitted to identify hootch, moonshine and corn whiskey by their ordinary experience in tasting or smelling it. [State v. Wheeler, 2 S.W.2d 777; State v. Stough, 2 S.W.2d 767; State v. Sappington, 2 S.W.2d 729; State v. Black, 289 S.W. 804; State v. Brown, 285 S.W. 995; State v. Brock, 280 S.W. 48.] Two of appellant's companions on the occasion in question (the Metcalf brothers), testified, in substance, that he (appellant) claimed the whiskey as his own, that he fought for it, and that, when the party was over, he put what was left of it in his car and went on his way rejoicing. Appellant's nephew and witness (Roy McGinnis) said the jug was put in appellant's car, while appellant "was there by the car." Another witness for appellant (Louis Hildebrand), who left the school grounds with appellant in the Ford roadster, said he did not "remember" whether appellant took any whiskey away. These facts and circumstances are not only sufficient to support the finding of the jury that appellant took the jug of whiskey away from the schoolhouse in his car, but also that he took it to the schoolhouse in his car, if they did so find. [State v. Janes, 1 S.W.2d 137; State v. Knight, 300 S.W. 719; State v. Steelman, 300 S.W. 743; State v. Connor, 300 S.W. 685; State v. Bishop. 296 S.W. 147; State v. Thompson, 289 S.W. 648; State v. Helpley, 279 S.W. 701; State v. Bennett, 270 S.W. 295.]
II. It is also contended that the punishment assessed by the jury is excessive, that the verdict was prompted by passion and prejudice on the part of the jury, and that the jury was influenced by the failure of the appellant to Excessive testify in his own behalf and by matters outside of Punishment. the evidence. The fixing of punishment for crime is a legislative and not a judicial function, and, when, as in this case, the punishment assessed is within the range prescribed by statute, it cannot be adjudged to be excessive by our appellate court. [State v. Wheeler, 2 S.W.2d 777; State v. Alexander, 285 S.W. 984.] The only proof offered in support of the charges made against the jury in the motion for a new trial was the testimony of J.H. Waddell, who was a member of the jury. The trial court properly excluded the testimony of this witness, on the ground that the verdict of the jury could not be impeached by a member of the jury. [State v. White, 289 S.W. 953.] We find nothing in the record to indicate that the jury was moved by passion and prejudice or by any other improper consideration. In the absence of proof, charges of this kind are of no avail. [State v. Wheeler, 2 S.W.2d 777; State v. Helpley, 279 S.W. 701; State v. Renfro, 279 S.W. 702.]
III. The further complaint is made that the jury was prejudiced against appellant by the evidence admitted in connection with the State's attempt to prove the charge alleged in the second count of the information, that is, that he sold and gave Evidence to away some of the whiskey in the jug. The question of Support misjoinder was not raised, by demurrer, motion to Abandoned quash, or motion to elect, and appellant made no Charge. objection to this evidence when it was offered. Counsel for appellant state, in their brief, that "at the close of the State's evidence, the second count of the information was dismissed by the court." While the record shows no formal dismissal as to the second count, the court did not instruct the jury on the second count and the jury made no finding on that count. Having failed to attack the information or to object to this evidence when offered, appellant was not in a position to complain about this evidence in his motion for a new trial, and, of course, such complaint is worthless on appeal. And this is true, whether the record be taken as a dismissal or as an acquittal as to the second count of the information. The misjoinder was cured by the verdict. [31 C.J. 883; State v. Brown, 296 S.W. 125; State v. Flynn, 258 Mo. 211, 167 S.W. 516.]
IV. Other assignments of error relating to the admission of evidence are general in character and do not specify with any degree of particularity the matters complained of. General Likewise, are the assignments of error relating to Assignments. certain instructions given to the jury. Such assignments present nothing for our review. [New Sec. 4079, Laws 1925, p. 198; State v. Murrell, 289 S.W. 859; State v. Standifer, 289 S.W. 856.]
V. It is seriously urged that appellant was entitled to a new trial on the ground of newly-discovered evidence. In support of his motion for a new trial on that ground, appellant offered the affidavits of J.R. (Pete) Taylor, Jack Stringer Newly-Discovered and Louis Hildehrand. The affidavits are to the Evidence. effect that these affiants were present and saw the jug of whiskey on the occasion in question and that it was empty when it was put in appellant's car and taken away from the school grounds. All of these affiants testified, at length, at the trial of this case. Taylor and Stringer for the State, and Hildebrand for appellant. Both Taylor and Stringer testified that they were not at the school grounds when appellant left there, but they were not asked whether or not the jug was empty when they left. Hildebrand, when asked the direct question, at the trial, whether appellant took any whiskey away from the school grounds, testified: "I don't remember, now, whether he did or not." Certainly, appellant was not entitled to a new trial because these witnesses wanted another chance to testify after their memories had been refreshed. The failure to fully cross-examine Taylor and Stringer at the trial shows a lack of diligence on the part of appellant and his counsel. Hildebrand's contradiction of his former testimony would not be very persuasive with the jury on another trial. Nor is it probable that the testimony of any or all of these witnesses would produce a different result on another trial of the case. On this showing of "newly-discovered evidence," appellant fell far short of meeting the requirements of the law, and it is apparent at once that the trial court committed no error in denying appellant a new trial on that ground. [State v. Goodwin, 300 S.W. 723; State v. Estes, 209 Mo. 288, 107 S.W. 1059; State v. Church, 199 Mo. 605, 98 S.W. 16; State v. McKenzie, 177 Mo. 699, 76 S.W. 1015.]
VI. Appellant filed a motion in arrest of judgment, in which he challenged the sufficiency of the information and the verdict. While motions in arrest of judgment, in criminal Arrest of cases, were abolished by the Act of 1925 (Laws 1925, Judgment. p. 198), and no longer have any place in our criminal procedure, we will examine the information and the verdict, because they form a part of the record proper. [Sec. 4106, R.S. 1919.]
The first count of the information follows the language of the statute, and covers all essential elements of the offense sought to be charged. [Laws 1923, sec. 21. p. 242.] Information. Informations similar in form and substance have been upheld by this court in numerous cases. [State v. Wheeler, 2 S.W.2d 777; State v. Knight, 300 S.W. 719; State v. Padgett, 289 S.W. 954; State v. Cardwell, 279 S.W. 99.]
The verdict of the jury says: "We, the jury find the defendant guilty as charged in the first count of the information," etc. (Italics ours.) It is responsive to the issue submitted and entirely sufficient in every particular. [State v. Verdict. Knight, 300 S.W. 719; State v. Cardwell, 279 S.W. 99.]
No error appearing, either in the trial proceedings or the record proper, the judgment is affirmed. Higbee and Davis, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.