Summary
In Miller, where the motion for new trial did not preserve the issue, the jury assessed a term of 7 years, which the trial court reduced to 4 years and 10 months.
Summary of this case from State v. ClineOpinion
December 12, 1927.
1. ASSIGNMENT: Against Weight of Evidence. An assignment that the verdict is against the evidence is the equivalent to saying it is against the weight of the evidence; and it is the duty of the trial court to determine whether a verdict is against the weight of the evidence, and this court does not pass on the question unless the trial court has manifestly abused its discretion in that respect.
2. ____: No Substantial Evidence: Particularity. An assignment in the motion for a new trial in a criminal case that "there is no substantial evidence to support the verdict" is sufficiently specific to require an examination of all the evidence in the appellate court. It means that the facts constituting the crime have not been proved, and the objection could not be stated with greater particularity.
3. INTOXICATING LIQUOR: Sale: Thieves and Accomplices as Witnesses: Credibility. The positive and direct testimony of three boys that they traded a stolen automobile tire to defendant for three pints of liquor and that the liquor was moonshine and made them drunk is substantial evidence to support a verdict finding defendant guilty of selling and bartering moonshine; and even though there be evidence that the three were self-confessed thieves, and were released from jail before their sentences expired as an inducement to them to testify, still those facts do not render them incompetent as witnesses, but only affect their credibility. Nor are they incompetent because accomplices of defendant in the trade.
4. ____: Sale: Barter and Trade. An information charging that defendant "did sell, barter and trade" three pints of moonshine for an automobile tire, without stating the value of the tire, charges an offense under the Act of 1923 (Sec. 21, Laws 1923, p. 242) which makes it a felony to "sell, give away, or transport" moonshine. In its restricted sense the word "sell" may be distinguished from "trade," but in its broader sense it includes "trade" or "barter;" and as used in the act it includes a trade of moonshine for money or other thing of value.
5. ____: Trade: Information: Value of Thing Traded. The fact that an information, alleging that defendant "did sell, barter and trade" three pints of moonshine for an automobile tire, does not state the value of the tire, does not invalidate the information. As a matter of common knowledge, of which courts take judicial notice, an automobile tire has commercial value. Besides, the Statute of Jeofails (Sec. 3908, R.S. 1919) declares that an information shall not be invalid "for want of a statement of the value or price of any matter or thing."
6. ____: Variance: Sale Charged: Proof of Trade: Belated Objection. It will not be held that there was a fatal variance between the allegation and the proof, in that the information charged a sale of moonshine and the State proved a trade, where no objection was offered to evidence that a trade was made by exchanging moonshine for an automobile tire. Even if such evidence tended to show a variance, and was therefore inadmissible, it was too late to object to it on such ground for the first time in the motion for a new trial.
Corpus Juris-Cyc. References: Criminal Law, 16 C.J., Section 949, p. 512, n. 57; Section 1397, p. 684, n. 87; Section 2643, p. 1146, n. 52; 17 C.J., Section 3350, p. 89, n. 67; Section 3593, p. 255, n. 52. Indictments and Informations, 31 C.J., Section 448, p. 839, n. 41. Intoxicating Liquors, 33 C.J., Section 460, p. 735, n. 49; Section 510, p. 764, n. 1. Sales, 35 Cyc., p. 25, n. 1. Sell, 35 Cyc., p. 1374, n. 54. Statutes, 36 Cyc., p. 1110, n. 54. Witnesses, 40 Cyc., p. 2206, n. 99.
Appeal from Douglas Circuit Court. — Hon. Fred Stewart, Judge.
AFFIRMED.
North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) The information sets forth the constituent element of the crime charged, and is therefore sufficient. Sec. 21, Laws 1923, p. 242; State v. Griffith, 279 S.W. 138; State v. Brown, 262 S.W. 711. The words "barter and trade" are mere surplusage, since they neither add to, nor detract from the element of the offense. While technically, they import a slightly different shade of meaning they are here synonymous with "sell" within the meaning of the statutes, (2) Assignment number one is insufficient. State v. Parsons, 285 S.W. 412. (3) There is no theory of law which would render the testimony of Davidson, Hameby and Henson inadmissible, or the admission thereof error. At most, only the question of credibility is involved, and that is a question for the jury. (4) Appellant is not clear and specific in his charge of variance. We can see no variance between the allegations of the information and the proof submitted. True, there was evidence of a trade, as there was also evidence of a sale for a casing. Proof of either would be sufficient to convict.
Information was filed in the Circuit Court of Douglas County charging that defendant, September 20, 1925, did "unlawfully and feloniously sell, barter and trade three pints of moonshine to one Victor Davidson for and in consideration of one 30 × 3½ automobile tire."
On trial by jury April 13, 1926, he was found guilty and his punishment assessed at two years in the penitentiary. Judgment followed, from which in due form he appealed.
Evidence offered by the State showed that three young boys, Wess Hameby, Victor Davidson and Leon Hensen, had been convicted and had received jail sentences for stealing an automobile tire on the day of the offense alleged in the charge against the defendant. After serving part of a term of thirty days for which they were sentenced, they were released after five or six days and appeared as witnesses against the defendant. Each testified that the casing which they had been charged with stealing they had traded to the defendant for three pints of liquor which they said was moonshine and made them drunk. There was no objection to their qualification to identify the liquor as moonshine.
In cross-examination the defendant endeavored to show that the boys were released from jail in consideration of their testifying against him. The witness Hameby was asked how he happened to get out of jail. He said the boys heard that some one had "turned in" the defendant, and then they just told how they got the whiskey from him. It was admitted by the prosecuting attorney that he caused the boys to be released.
The defendant denied that he sold or traded the boys any liquor. He said he found a bottle in Davidson's car; that the boys proposed to trade him the tire for liquor; that he refused and his brother-in-law, one Philip Loveall, made some sort of dicker for the tire. Loveall testified that he bought the tire from the boys for three dollars.
Appellant has filed no brief in this case.
I. The first assignment of errors in the motion for new trial is as follows: "The verdict of the jury is against Assignments. the evidence and there is no substantial evidence to support the verdict."
The Attorney-General claims that the assignment is not sufficiently specific, and cites the case of State v. Parsons, 285 S.W. 412. In that case the assignment of error held insufficient was as follows: "The verdict is against the evidence and against the weight of the evidence."
To say that the verdict is against the evidence is the equivalent of saying that it is against the weight of the evidence. Those two expressions mean one and the same thing. It is the duty of the trial court to determine whether a verdict is against the weight of the evidence. We do not pass upon it here unless the trial court manifestly has abused its discretion in that respect. The assignment here does not say that the trial court abused its discretion in failing to sustain the motion on that ground.
The remainder of the assignment, that there is "no substantial evidence to support the verdict," is entirely sufficient. That requires an examination of all the evidence, and the objection could not be put in any form with greater particularity which would relieve us of that duty. When it says that there is no "substantial evidence" to support the verdict, it means that the facts constituting the crime have not been proven.
Substantial evidence in this case supports the verdict. The three boys testified positively and directly to the purchase of three pints of moonshine liquor from the defendant. Appellant alleges in his motion that they were "self-confessed thieves," serving jail sentences, and were discharged as an inducement for them to tell. The evidence is not clear as to any Substantial bargain between the prosecuting attorney and the Evidence. witnesses. It shows only that they were released and afterwards testified. If the statement in the motion were correct it would not render them incompetent as witnesses but would affect only their credibility. Nor were they incompetent because they were accomplices of the defendant in the trade. [State v. Asher, 246 S.W. 911; State v. Hayes, 247 S.W. 165.]
II. The information is attacked because it states no violation of law in that it "charges a sale or barter and fixed no value in the thing bartered for." Sale.
The information charges that the defendant "did sell, barter and trade" three pints of moonshine for an automobile tire. That requires a definition of "sell" to determine whether the words "barter and trade" as used in the information, would merely describe the manner of selling. The word "sell" as defined by Webster's dictionary means "to transfer property for a consideration; to transfer the absolute or general title to another for a price or a sum of money; . . . to dispose of in return for something." And the word "sale" in the same dictionary is defined as a contract whereby the absolute or general ownership of property is transferred from one person to another for a price or sum of money; or, loosely, for any consideration.
These are legal definitions, and mentioned in the encyclopaedias. In the restricted sense, then, "sell" may be distinguished from "trade," but in the broader sense it includes trade or barter. The Legislature enacting the prohibition law (Sec. 21, Laws 1923, p. 242), made it a felony to "sell, give away," etc., moonshine. Evidently in Section 21, the Legislature intended to use the word "sell" in its broad sense, so as to include a disposition for any consideration. We cannot assume that the lawmakers intended to give the word a meaning which would defeat the purpose of the act. They did not intend to prohibit selling and giving away moonshine liquor and allow it to be traded for any consideration other than money. Such a construction would stimulate the ingenuity of dealers to devise sales by indirection and accomplish a flourishing business, permitted by the letter of the law.
Nor does failure to fix the value of the tire traded for invalidate the information. The Statute of Jeofails (Sec. 3908, R.S. 1919) declares an information shall not be invalid "for want of a statement of the value or price of any matter or thing." A trade is a trade if accomplished in consideration of Allegation any commodity, whether or not that consideration be of Value. of actual pecuniary value to the seller. As a matter of common knowledge, of which we may take judicial notice, an automobile tire has commercial value.
III. Another alleged error is that there was a fatal variance between the evidence and the charge, on the theory that the information charges a sale and proves a trade. If, in fact, the evidence had not supported the charge, it would have been inadmissible, and on proper objection should have been excluded. But to Variance. evidence that a trade was made in exchanging liquor for an automobile tire, no objection was offered. It was too late to object for the first time in the motion for new trial.
The judgment is affirmed. All concur.