State v. Bailey

• Decision Date: 17 July 1926
• Docket Number: No. 4086.,4086.
• Citation: 286 S.W. 422
• Parties: STATE v. BAILEY.
• Court: Missouri Court of Appeals

286 S.W. 422

STATE v. BAILEY.

No. 4086.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Appeal from Circuit Court, Pemiscot County; Hon. Henry C. Riley, Judge.

Harry Bailey was convicted of unlawfully possessing intoxicating liquor, and he appeals. Reversed, and defendant discharged.

Sharon Pate and Von Mayes, both of Caruthersville, for appellant.

Sam J. Corbett, Pros. Atty., of Caruthersvale, for the State.

BRADLEY, J.

Defendant was charged with the unlawful possession of intoxicating liquor, and on trial he was convicted, and his punishment fixed by the jury at a fine of $1,000. Motion for a new trial was filed and overruled, and defendant appealed.

Of the assignments of error made in the motion for a new trial, defendant here relies upon the ones challenging the sufficiency of the evidence and the admission of evidence.

The information charges that' on or about June 7, 1925, defendant "did then and there unlawfully possess certain intoxicating liquors, to wit, about one gallon and five half pints of moonshine corn whisky." June 7, 1925, the sheriff, with others, found a gallon and some few half pints of corn whisky in a treetop in a woods across the road and a short distance north of defendant's house. Defendant resided on his farm in Pemiscot county a short distance north of the Arkansas state line. The farm and defendant's residence are on the east side of a 40-foot public road that runs north and south along and by defendant's farm. West of this public road, and opposite defendant's farm, is a strip of unfenced woodland. Defendant's residence is on the east side of the road, and about midway of the woodland. About a half quarter north of defendant's residence and on his farm, is a "nigger shack, where the niggers lived on his farm." The liquor was found in a treetop about half way between his residence and the shack, and about 30 or 40 feet from the road. There were other houses south and west of where the liquor was found and within the immediate vicinity, but none so near as defendant's and the shack. The neighborhood generally was rather thickly settled, and practically all the lands were cleared and in farms except the strip of woodland mentioned.

These woods are not virgin, but there is a "lot of timber yet, small bushy timber, and lots of timber down, tops." This woodland extends north and south about a quarter of a mile, and extends back west about a mile or more. The whole woodland, so far as the . record shows, is criscrossed with paths, and there was a path from the place where the liquor was found running directly towards defendant's house and the negro's house. These paths, however, terminated at the road. When the sheriff was on the stand, he was asked:

"The trail didn't pass the road? A. Trail to the road, and of course wasn't no trail across the road, except it was muddy. We have been down there at times when it was muddy, and tracked them right across the road."

Over objection and exception, the sheriff, speaking of an occasion mentioned, infra, in connection with the evidence of the witness Gaines, testified:

"Yes, sir; we found it (liquor) all along there excepting one time—never found any over at his house at all—found it at the nigger's house once; found it in the ditch in front of his house, and all up and down the woods."

Witness Albert Woodward was not with the sheriff when the liquor was found on June 7, 1925, but he had visited these woods some time in the year prior to June 7th, and he testified that he found in this woodland, and in the vicinity of where the sheriff found the liquor, "a right smart of whisky," some five gallon cans, gallons cans, and "a few treetops that looked like somebody had taken a stand." Also this witness said that he found or saw crates and cartons and lots of broken bottles. Also this witness testified that there was "a plain beaten path that led directly from his (defendant's) house and front gate over to this wooded strip in front of the house."

Witness H. D. Gaines was not with the sheriff on June 7th, but had examined or searched these woods in company with the sheriff on an occasion prior. Just when does not definitely appear, except that it was probably within a year prior to filing the information, which was on June 22, 1925. Gaines testified:

"We found 41 lot of empty bottles, jugs, and alcohol cans and little wooden crates these cans would come in, where they had been opened and throwed up against the logs or stumps there, and broke quite a number of jugs and bottles. We got some whisky and a jug of something or other—it was colored, I believe some kind of flavoring. We brought it with us that day. Quite a number of paths around this place; the logs in places were pretty slick, sorter like—it resembled more of a play ground where kids had been playing around school— cigar stubs and tobacco cans. The places were cleaned or pretty clean; looked like they might have been used for a crap game or something like that.

"Q. Did you find a great number of these empty bottles and jugs and cans and the like? A. Oh yes, four or five of us, we broke lots of 'em. We broke them all up and down the side of the road.

"Q. Find them right on the side of the road right immediately in front of his house? A. Found some right close to the road.

"Q. Did you find any in brush piles and hollow stumps and things like that? Found some thrown in brush piles and over behind the logs.

"Q. Was that in these woods immediately in front of his house? A. Yes sir; wasn't very far out—I didn't go very far—out far where they had been cutting timber we didn't find so much." "

It seems that on the occasion witness Gaines was testifying about the sheriff, and he arrested the defendant on a liquor charge. Speaking of this occasion, the prosecuting attorney asked witness Gaines:

"Did you hear him make any statement about having handled whisky there at any time within a year before the 22d day of June, 1925?"

Over objection and...