State v. Melton , 1908 Mo. App. LEXIS 226 ( 1908 )

BLAND, P. J.

On an information filed by the prosecuting attorney of Stone county, stating that local option had been adopted and was in force in said county, and that defendant had violated said law by unlawfully selling one quart of whiskey, defendant was put upon trial to a jury, who found him guilty as charged. Tbe county court, in compliance with sections 3769, 3770, Revised Statutes 1899, drew a panel of petit jurors for service at the term of the circuit court at which defendant was tried, which panel was certified to the clerk of the circuit court by the clerk of the county court. Prom this panel were drawn the jurors who found the verdict against defendant. Before the jurors were called and qualified, defendant moved to quash the panel, on the ground that the names of the persons put in the hat to be drawn as jurors were not selected by the judges of the county court, but by the prosecuting attorney of the county; and also that some of the names on the panel were drawn from the hat by an unauthorized person. In support of the motion, defendant offered evidence showing that the prosecuting attorney was present during all the time the jurors were being drawn; that on two occasions he stepped aside with a judge of the-county court and was consulted as to the character and qualifications of some of the persons whom the judge had selected for jurors, and that several persons named by the judge were discussed with the prosecuting attorney before their names were put in the hat, but the evidence does not show that the prosecuting attorney suggested the name of a single person to any one of the judges as a proper person for a juror, or that any name was erased from the list selected by the court or any one. of the judges, at the request of the prosecuting attorney or at all. The evidence also shows that George Smith, who was not a deputy of the county clerk, but worked in the office at times and styled himself “a helper,” during a temporary absence of the clerk, in the presence and by direction of the county court, drew the-names of three jurors from the hat. The most that can be said of this evidence is that it tends to show some irregularity in the selection of the panel of jurors by the county court, but it does not show, as was the case in State v. Austin, 188 Mo. 478, 82 S. W. 5, that the prosecuting attorney selected the jurors. The county court is required to select names of persons having “all the requisite qualifications of jurors,” from each township in the county, and we do not think it would be improper for a ju/lge of the court to inquire about the qualifications of a person, whose name was on the list placed in the hat, and about whose qualifications he might be in doubt.

The proof showed that local option was adopted in Stone county in September, 1905, and that the- result of the election was published as required by the statute. On the merits, the evidence shows that one A. Hodges, defendant and others were in an office at Crane in Stone county, and the question of getting some whisky came up. Defendant remarked he generally got his at Branson. Hodges said, “I wish I could get some one to get me some,” and asked defendant if he could get it. Defendant replied that he could. Hodges gave him a dollar and defendant disappeared and in about twenty or thirty minutes a bottle of whiskey was found on a table in the office. Defendant kept the dollar. Defendant swore he purchased the whisky of another person, and introduced a witness who swore he saw defendant buy a quart of whisky but refused to disclose the name of the seller on the ground that it would incriminate him (the witness). Defendant demurred to the evidence. While the evidence might have warranted the jury to find that defendant was the agent of the purchaser, yet it warranted the jury to find defendant was the active vendor. In this class of cases courts are disposed to approve of verdicts of conviction when the circumstances shown point the jury with reasonable certainty to the crooked paths and hidden ways the illegal vendor traveled to make a secret delivery of ardent spirits to the whisky-thirst purchaser; for it is common knowledge that “for ways that are dark and tricks that are vain” the Chinese is an unsophisticated heathen compared to the “boot-legger.” The subterfuge resorted to by defendant to sell a bottle of whisky to Hodges by putting it where he could get it was not so mystifying as to hide the real transaction from the eyes of the jury. They saw through it and we think found a just verdict.

The judgment is affirmed.

All concur.