Moore v. State
| Decision Date | 07 October 1926 |
| Docket Number | No. 25029.,25029. |
| Citation | 198 Ind. 547,153 N.E. 402 |
| Parties | MOORE v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Gibson Circuit Court; Claude A. Smith, Judge.
Cleve Moore was convicted of having counseled, encouraged, hired, and commanded others to possess a still and distilling apparatus for the manufacture of intoxicating liquor, and he appeals. Affirmed.
Hovey C. Kirk, of Princeton, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
An affidavit in two counts charged that on March 13, 1925, appellant unlawfully and feloniously counseled, encouraged, hired, and commanded Sam Beach and Joe Beach (1) feloniously to have in their possession and under their control a still and distilling apparatus for the manufacture of intoxicating liquor in violation of the laws of this state, and (2) feloniously to use and operate such a still and apparatus for said purpose, which acts those two persons were duly alleged feloniously to have done. The jury returned a verdict finding appellant guilty as charged in the first count. Overruling his motion for a new trial is assigned as error, under which he complains of the giving of certain instructions, the refusal to give certain others, and the admission of certain evidence.
There was evidence that, with a search warrant authorizing him to do so, the sheriff went to the club house at Smith's Camp on the bank of White river, at which Sam Beach and Joe Beach were staying, and in one room of the house-“a little corner room, boxed off”- found a distilling apparatus, full of mash, setting on a stove, and warm, though the fire was turned out; that Sam Beach had delayed the officers a long time before they got into the house; that they also found a barrel of mash in the attic, with a rubber hose leading from it to the still, and found a gallon jug and two bottles full of white mule whisky in the house; that both Sam and Joe Beach pleaded guilty to the charge of having the still and distilling apparatus in their possession and under their control; that the father of appellant's wife (with others) had built the club house on lands held under a lease, and, becoming sole owner, he had occupied it until his death, after which appellant had held possession under the lease for five years, paying $50 a year as rent, and subleasing to persons who camped there while fishing and hunting; that Sam Beach had been employed by appellant as caretaker for about a year, and through the fall and winter months his brother, Joe Beach, had been staying there with him; and that appellant lived in Evansville and usually came up to the camp on Sundays, and frequently came on other days in the hunting season. Both Sam Beach and Joe Beach were witnesses for the state. Both testified that appellant told Joe Beach to order a still and have it shipped to Mt. Carmel, and that he would go with his car and get it; that he borrowed from Sam Beach the money with which the first payment on the still was made, and when they received notice that it had reached Mt. Carmel he gave Joe Beach $10.50 and said for Joe and Sam to go down with the boat and get it, and they brought the can and lid up from Mt. Carmel; that appellant brought the coils they used from Evansville and also brought a barrel and a keg and some sugar and meal and yeast and “stuff to set the barrel,” and helped to set up the still and to put it in operation; that he measured the walls and promised to bring out some lumber to carry the partition of the little corner room up to the ceiling; that appellant had driven over into Kentucky with Joe Beach in search of a still before this one was ordered, and had taken him to see a man there in an effort to buy one; that afterward appellant sent Joe Beach to Mt. Carmel with a wagon to get some of “the ingredients to make the second batch” of whisky; that he gave Joe $10 with which he purchased sugar, yeast and meal; that appellant came out and said he had wicks for the stove, which his wife put into it, and also brought five gallons of coal oil; that he helped to strain the stuff off from the barrel to the can and helped to carry it to the little room, and, after it was drained, helped to empty the barrel over the river bank; that each time Sam and Joe Beach made whisky there appellant took some of it away with him; that appellant gave Joe Beach something more than $7 to use in purchasing sugar and meal at Mt. Carmel to prepare the “third batch,” which was in the barrel and the still when the sheriff came, and at that time said “that the next that was set he wanted two gallons to take to town”; that after the still was brought there appellant said to go ahead and make whisky, and he could “get shut of it all”; and that he had been at the club house in the evening before the place was raided and the still seized. Appellant denied all knowledge of the still being there and all participation in obtaining it, setting it up, or obtaining materials from which to make whisky, or that he received or drank any of the whisky made there, and introduced evidence that his general moral character was good and that the witness, Joe Beach, had made threats against him.
[1] Appellant complains that instead of giving an instruction asked by him the court modified it by inserting and adding the words which we have italicised below, and gave it in the following language:
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