State v. Sandoe

• Decision Date: 20 December 1926
• Docket Number: No. 27052.,27052.
• Citation: 289 S.W. 890
• Parties: STATE v. SANDOE.
• Court: Missouri Supreme Court

289 S.W. 890

STATE v. SANDOE.

No. 27052.

Supreme Court of Missouri, Division No. 2.

December 20, 1926.

Appeal from Circuit Court, McDonald County; Charles L. Henson, Judge.

George Sandoe was convicted of the illegal manufacture of liquor, and he appeals. Affirmed.

O. R. Puckett, of Pineville, for appellant.

North T. Gentry, Atty. Gen., and H. O. Harrawood, Sp. Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On December 8, 1925, the prosecuting attorney of McDonald county, Mo., filed in the circuit court of said county a verified information, which, omitting formal parts, reads as follows:

"Now comes J. T. Pinnell, prosecuting attorney within and for McDonald county, in the state of Missouri, in the behalf of the state of Missouri under his official oath and upon his information and belief, informs the court that on or about the 30th day of October, 1925, at and in the county of McDonald and state of Missouri, one George Sandow and Harvey Gillespie did then and there willfully, unlawfully, and feloniously manufacture, make, brew, distill hootch, moonshine, corn whisky, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.

"And the said.J. T. Pinnell, prosecuting attorney aforesaid, upon his official oath and upon his information and belief aforesaid, doth further inform the court that on or about the 30th day of October, 1925, at and in the county of McDonald, in the state of Missouri aforesaid, one Ike Summers and Claud Summers then and there willfully and unlawfully and feloniously were present, aiding, helping, abetting, assisting, and maintaining the said George Sandow and Harvey Gillespie in the felony aforesaid, in manner and form aforesaid, to do and commit, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.

                        "J. T. Pinnell, Prosecuting Attorney."
                

Both defendants waived a formal arraignment and entered their pleas of not guilty. On the date aforesaid a trial was had before a jury and the following verdict returned:

"We, the jury, find both the defendants guilty as charged in the first count in the information, and we do assess the punishment of George Sandow at 5 years in the state penitentiary. And we do assess the punishment of Harvey Gillespie at 5 years in the state penitentiary.

                              "R. H. Bayne, Foreman."
                

On the date aforesaid, both defendants filed their respective motions for a new trial, which were overruled. Thereafter the court granted each of said defendants allocution on the date aforesaid, entered judgment, pronounced sentence on each defendant separately, and each was granted an appeal to this court. The case of State v. Gillespie is separately briefed and numbered in this court 27330.

Counsel for the defendant in this case have made a very brief and argumentative statement of the facts, which we cannot accept. On the other hand, counsel for the state have made a very full and fair statement, which we adopt as follows:

"The testimony of the state in the case tends to show: That on or about the 30th day of October, 1925, the sheriff of McDonald county, Mo., L. R. Smith, and his deputy, George Jeffries, together with Joe Gailey, sheriff of Benton county, Ark., and one of his deputies, a Mr. Fields, made a raid in search of a still which they located at the mouth of a hollow some distance south of Pineville, Mo., and in McDonald county. That at the still when discovered, they found a fire burning in the furnace, some 15 gallons of corn whisky in fruit jars and other containers, eight 50-gallon barrels of mash in the process of fermentation, mash sticking to the sides of the cooker, and the ground around the still tramped down—everything, in fact, indicating that the still had very recently been operated, and that actual preparations were under way to run off more liquor from the mash on hand.

"Sheriff Smith and the sheriff from Benton county, who first discovered the still under a shelf of rock, went in under the rock and sat down until Mr. Gillespie and a boy by the name of Summers came up carrying a load of wood apiece. The Summers boy dropped his wood and stopped where he was, and Gillespie started to run. The sheriff halted him, and they remained there for some time. In the meantime the deputy sheriff, Jeffries, had captured Sandow (Sandoe) a short distance from the still, and a little later brought him there. Sandow (Sandoe) said that if Jeffries had not stopped him, he would have been up there and they need not have waited so long. They then started with Sandow (Sandoe) and Gillespie to the sheriff's which they had left about a mile from the still, during which time both defendants freely talked regarding their ownership of the still and their part in the manufacture of the whisky.

"Sandow (Sandoe) stated that the still was his and Gillespie's; that everything belonged to Gillespie and him; that it was their whisky and their still; that he wanted the whisky tested, and wanted to show the judge of the court what kind of whisky they were putting out; said that `whisky would test from 100 to 150'; said that they had a good outfit made of solid copper, and that they were putting out a good grade of whisky.

"The testimony of Sheriff Smith goes to show that the statements and admissions of Sandow (Sandoe) and Gillespie, made in the presence of each other, were voluntary, and that no force, intimidation, or undue influence was used to secure such statements and admissions.

"The trial court, after hearing such testimony on the part of the sheriff, in the absence of the jury, said: `The confession is voluntary so far as its admissibility is concerned with the court.'

"On the day following the arrest Gillespie made the following written statement, which was identified by the sheriff, marked Exhibit A and offered in evidence by the state:

"`I, Harvey Gillespie, being duly sworn according to law, make the following statement of my own free will and accord:

"`I came from Joplin, Mo., and vicinity in September, 1925. George D. Sandow and I put up a still and manufactured corn whisky. We moved to the farm occupied by Ike Summers and made two runs of corn whisky in October, 1925. We turned out about 40 gallons of corn whisky on the Summers place. Ike Summers gave us permission to run the still on the farm in his possession. We took odd meals there and slept in Ike Summers' barn. Sandow and I were full partners in the manufacture of corn whisky in McDonald county, Mo., during the month of October, 1925. We sold about all the corn whisky we manufactured. The sheriff has what is left. Harvey Gillespie.'

"The testimony of Sheriff Smith was corroborated by Sheriff Gailey and Deputy Sheriff George Jeffries, both of whom testified in behalf of the state.

"The defense offered no testimony, but at the close of the testimony offered by the state, the attorney for the defense, Mr. Puckett, seemingly offered a verbal motion asking the court to instruct the jury that under the law and evidence in this case they should acquit the defendant, which motion was overruled by the court."

Opinion.

I. The information containing two counts is heretofore set out. The first count of same, under which defendant stands convicted, is sufficient as to both form and substance. State v. Addington (Mo. Sup.) 285 S. W. 736; Kinney v. State (Mo. Sup.) 285 S. W. 87; State v. Tom Wright (Mo. Sup.) 280 S. W. 703; State v. Bostic (Mo. Sup.) 285 S. W. 432; State v. Griffith, 311 Mo. 630, 279 S. W. 135; State v. Moore, 311 Mo. 531, 270 S. W. 131; State v. Brown (Mo. Sup.) 285 S. W. 995; State v. Bauer (Mo. Sup.) 285 S. W. 82.

II. The first two grounds in the motion, for a new trial may be considered together. They charge that the verdict of the jury is against the evidence, against the weight of the evidence, and contrary to the law as declared by the court. It is unnecessary to consider at length these propositions. The evidence heretofore set out is conclusive as to appellant's guilt and especially so in considering a demurrer thereto. This assignment of error is without merit and overruled.

III. The third assignment in the motion for a new trial charges that defendant should have been acquitted for the following reasons:

(a) "There was no evidence given or offered by the state proving or tending to prove when, if ever, the alleged offense was committed by defendant, or to show that the information in said case had been filed within three years after the offense was alleged to have been committed."

The record proper discloses that the information herein was filed on November 7, 1925. It charges defendant with the violation of the liquor law on or about October 30, 1925. On the facts stated, the information was filed promptly and in ample time. The testimony of L. R. Smith, sheriff of McDonald county, Mo., and others who were with him, tends to show that on October 30, 1925, defendant was unlawfully making whisky in McDonald county, Mo. Sheriff Smith testified on this subject as follows:

"Q. In what county and state did these things to which you have testified occur, Mr. Smith? A. McDonald county, state of Missouri."

Defendant was engaged in the business of making whisky when arrested on October 30, 1925. The foregoing contention of appellant is without merit.

(b) It is insisted in said assignment 3 that: "There was no evidence given or offered by the state proving or tending to prove the intoxicating liquor alleged to have been made by defendant was corn whisky."

Sheriff Smith testified that he tasted the whisky in controversy and that it was corn whisky. The evidence conclusively disclosed that defendant was engaged in unlawfully manufacturing whisky in McDonald county, Mo., on October 30, 1925. It was immaterial whether he was making corn whisky, as he was guilty if he made any kind of whisky on said occasion. State v. Tom Wright (Mo. Sup.) 280...