State v. Shelton
| Decision Date | 21 May 1926 |
| Docket Number | No. 26642.,26642. |
| Citation | 284 S.W. 433 |
| Parties | STATE v. SHELTON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Dent County; W. E. Barton, Judge.
John D. Shelton was convicted of unlawful manufacture of intoxicating liquors for beverage purposes, and he appeals. Affirmed.
Wm. P. Elmer, of Salem, for appellant.
North T. Gentry, Atty. Gen., James A. Potter, Asst. Atty. Gen., and A. M. Meyer, Sp. Asst. Atty. Gen., for the State.
Statement.
On April 6, 1925, the prosecuting attorney of Dent county, Mo., filed in the circuit court of said county, a verified information in three counts. The first count charged defendant with unlawfully having in possession on the ____ day of January, 1925, in said county, six gallons of mash, then being used and fit for use in the unlawful manufacture a intoxicating liquors for beverage purposes. The first count was not submitted to the jury, and seems to have practically dropped out of the case. The third count charged defendant with the crime of unlawfully having in his possession intoxicating liquors for beverage purposes. The jury acquitted him under this charge.
The second count, omitting formal matters, reads as follows:
"Clyde C. Cope, prosecuting attorney within and for the county of Dent and state of Missouri, upon his oath of office, information, and belief, informs the court that John D. Shelton, on about the — day of —, 1924, at and in the county of Dent and state of Missouri, did then and there willfully and unlawfully manufacture intoxicating liquors for beverage purposes, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."
On said 6th day of April, 1925, appellant filed a motion to quash the search warrant and suppress evidence. On the same date defendant filed a motion to quash the information. Both motions were overruled. On April 10, 1925, defendant was arraigned and entered a plea of not guilty. Thereafter, on the same date, the jury before whom the cause was tried returned into court the following verdict :
On April 11, 1925, defendant filed a motion for a new trial, which was overruled. Thereafter, on the same day, allocution was granted, judgment rendered, and sentence pronounced under the second count aforesaid in conformity to said verdict. Thereafter defendant, in due form, was granted an appeal to this court on account of constitutional questions presented.
The prosecutions were all had under the provisions of section 6588 of the intoxicating liquor law of 1921, as reported in the Session Acts of 1921, at page 414. The main facts are fairly stated by counsel for respondent as follows:
John R. Welch, sheriff of Dent county testified that early in 1925 he made a search of the defendant's farm in Dent county, Mo. and found in the barn loft of the defendant 4 or 5 gallons of corn mash fit for use in the manufacture of intoxicating liquor; that he took a sample of the liquid off of this mash and it had the odor of alcohol. He further testified that he made a second search a short time later and found a big hollow running from the Meramec, river near defendant's farm and up through defendant's cornfield; that beyond defendant's cornfield there was a large gully which emptied into this big hollow running to the river, and a path or road led from the gully to the defendant's barn; in this gully the sheriff found a shovel, a small barrel, 3 gunny sacks under a rock, the top of an old stove and several places where fires had been built, a broken piece of a jug, some broken fruit jars and several piles of corn mash; that beyond the gully some 50 or 75 yards and off' of defendant's farm he found a man-made cave down in the ground which was entered by climbing down an Indian ladder. As stated, the sheriff found the mash in the barn on his first visit and the other articles on his second visit.
The witness Bates, a deputy sheriff, was' present during the second search and corroborated the sheriff as to the articles found in the gully and also as to the cave, and added certain other articles, to wit, a teacup, a spoon, and some flour paste. He further testified that the gully was some 275 yards from defendant's home and off of his land.
The witness John Mullinix, upon whose testimony the defendant was convicted under count 2, testified that a few days prior to December 20, 1924, he met the defendant in Salem, Mo., and that the defendant told the witness that he intended to run off a batch of whisky about the 20th of December; that on the 20th of December, 1924, the witness went out to the defendant's farm to secure some of the whisky; that he and the defendant went out to the cave identified by the sheriff and his deputy and went down in the cave; that the defendant had a still in operation in said cave on said occasion; and that the witness purchased a quart of whisky which was made in said still on that night by the defendant.
The evidence for the defendant consisted of a flat denial of the testimony of the witness Mullinix. The defendant also denied the ownership or possession of any of the articles found in the gully off of his place, and denied any control over the cave mentioned by the state's witness. He further testified that the corn mash found in his barn was hog feed, and was used by him in fattening a large hog which other witnesses said the defendant owned and killed some time during the past winter. The defendant also offered several witnesses to impeach the veracity of the witness Mullinix.
As the first count of the information " was abandoned, and the defendant was found not guilty under the third count, the only issue in the case is the sufficiency of the proof under the second count, and, since the evidence for the state consisted of the clear and positive evidence of the witness Mullinix, this issue was one solely for the jury.
The defendant filed a motion to quash the search warrant used by the sheriff at the time of making his two searches, which included a motion to suppress the evidence obtained by the sheriff, consisting of the corn mash. Under the ruling of this court in the case of State v. Cobb, 273 S. W. 736, and prior decisions, the applications for the search warrants, and the search warrants themselves, were in due form. Furthermore the defendant was not convicted on any evidence obtained by the searches made by the sheriff, this count having been abandoned and not submitted to the jury at all.
No attack upon count 2 of the information is preserved in the record. The instructions were full and fair, and presented all the necessary issues to the jury.
Opinion.I. The brief of appellant, in discussing the search warrant, alleges that:
(Italics ours.)
The prosecuting attorney filed a verified application for a search warrant with a justice of the peace, alleging therein that:
"In a certain dwelling house and the premises thereof, and the outbuildings located upon said premises, all under the control of, and occupied by, John D. Shelton, located on his farm in sections 10 and 11, township 35, range 5, Dent county, Mo., and in a plank barn about 30 feet square, containing a loft, said barn being located on said farm and being about 50 yards from the dwelling house aforesaid, and being the only barn on said premises, said barn belonging to, and being under the control of, said John D. Shelton, intoxicating liquor is being unlawfully manufactured, sold, stored, and kept; that thereat and therein is also being used and kept a still, doubler, worm, worm tub, mash, mash tubs, fermenting tubs, vessels, fixtures, and equipment, and parts thereof, used and fit for use in the unlawful manufacture and production of intoxicating liquor," etc. (Italics ours.)
Ike Epstein, the justice of the peace before whom said application was filed, issued and delivered to the sheriff of said county a search warrant, based on said application of the prosecuting attorney, supported by the affidavit of the sheriff, etc. We have examined the application and affidavit aforesaid, and have also examined the search warrant issued pursuant to same. We find that they are fully sustained by the former rulings of this court in State v. Cobb (Mo. Sup.) 273 S. W. 736, and State v. Perry (Mo. Sup.) 267 S. W. 828.
II. Aside from the foregoing, the validity of the search warrant in this case simply presents a moot issue, as defendant was not convicted upon any evidence obtained by the officers. He was tried and convicted under count 2 on the testimony of John Mullinix, for unlawfully manufacturing intoxicating liquors for beverage purposes. The first count was abandoned, and the jury returned a verdict in favor of appellant on the third count. Judgment was rendered against him for $200 on the second count, and from the latter he was granted an appeal to this court on account of the constitutional questions which his counsel injected into the case.
III. It is insisted by appellant that he had the legal right to impeach the warrant, and proceedings on which it was based, under his motion to quash the same. We fully considered this question in State v. Cobb (Mo. Sup.) 273 W. loc. cit. 738, 739, and there reached a conclusion adversely to appellant's contention. As stated in the Cobb Case, the intoxicating liquor law was clearly intended by the Legislature to receive a...
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