Opinion
No. 42588.
February 11, 1952.
C. Arthur Anderson, St. Louis, for appellant.
J. E. Taylor, Atty. Gen., D. D. Guffey, Atty. Gen., for respondent.
Sam F. Drewing was charged with selling intoxicating liquor without first having procured a license from the supervisor of liquor control. Mo.R.S. 1949, § 311.550, V.A.M.S. He waived a jury, and upon the trial of the charge the circuit court found him guilty and fixed his punishment at a fine of $300.
His specification in his motion for a new trial and his assignment here, without the citation of authority or reasons, that the trial court erred in excluding certain testimony offered for the purpose of impeachment is an insufficient compliance with the statutory requirement that the grounds for a new trial be set forth in detail, with particular applicability, and presents nothing for this court's review. State v. Courtney, 356 Mo. 531, 202 S.W.2d 72. Upon the trial of the charge, as here, his defense was twofold; entrapment, and that he was not guilty, that he did not sell intoxicating liquor, particularly to the state's two principal witnesses — that he was not in his beer tavern on the evening of the alleged sale and had never seen the state's principal witnesses in his life until the day of the trial. It is urged first that the state's evidence shows entrapment, and second that the state failed to sustain the burden of proving his guilt of the charge beyond a reasonable doubt and therefore the judgment of conviction should be reversed and the appellant discharged. The appellant waived a jury trial, but it is not necessary to a determination of this appeal to say whether the trial court's finding has "the force and effect of a verdict of jury", Const.Mo. Art. 1, § 22(a), V.A.M.S., or whether this court will "review the case upon both the law and the evidence as in suits of an equitable nature" under the Civil Code. Mo.R.S. 1949, Sec. 510.310, subd. 4, V.A.M.S. In whatever manner the case is reviewed, the court's finding of the appellant's guilt is supported by substantial evidence.
Gus Temme of Wentzville is an agent for the Department of Liquor Control. On the evening of April 22, 1950 his son, Roland, and his son-in-law, Herman Gross, and their wives were going to a dance in Marthasville. As they left home Mr. Temme told them to go to the Green Gables Tavern "And he says, `While you are there, you might try and see if you can buy any whiskey at Sam's.'" The two young men went in the tavern and asked to see Sam. Sam came in from a back room and they asked him if he could "fix us up with a pint." Sam said that he would like to "but I have only got one bottle left, and there will be some boys around in the morning that will want a drink." The boys talked to him a while and one of them asked him if he could "spike" a couple of 7-Ups and Sam said that he didn't like for it to go out. But as they were about to leave Sam said, "I can fix you up with a couple of highballs." The boys said "OK" and Sam fixed two soda and whiskey highballs. As the boys drank Roland asked for a couple of 7-Ups to take to the girls waiting in the car. Roland took his highball along with the 7-Ups and poured the contents of his glass into a liquor department bottle. He returned to the tavern and Sam sold them two more highballs for the price of twenty-five cents each. The contents of the liquor control's bottle was found upon analysis to contain "percentage of alcohol by volume 12.32, and the percentage of alcohol by weight 9.93, and the proof read 24.64." Despite his denials the two young men identified the appellant as Sam Drewing, the person who sold them the whiskey highballs.
The young men were not employed by the Department of Liquor Control and were not officers of the law, one was a cabinetmaker and the other was employed in a General Motors plant. There is no evidence that the sale was induced by an appeal to sympathy, pity or friendship, and there is no evidence that the sale was not voluntarily made. So far as appears, if required in this liquor case, the appellant was not lured into committing an offense which he otherwise would not have committed and had no intention of committing. 22 C.J.S., Criminal Law, § 45, p. 100. Upon this record the appellant was simply the victim of his own misplaced confidence in those who turned out to be decoys. In short, there is no evidence of entrapment and substantial evidence that the appellant was guilty as charged. State v. Varnon, Mo.Sup., 174 S.W.2d 146; State v. Decker, 321 Mo. 1163, 14 S.W.2d 617; State v. Sheeler, 320 Mo. 173, 7 S.W.2d 340; annotation 18 A.L.R. 146, 162.
There is no error upon the record proper and the judgment is affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.