State v. Bauer
| Decision Date | 28 May 1926 |
| Docket Number | 26983 |
| Parties | STATE v. BAUER |
| Court | Missouri Supreme Court |
North T. Gentry, Atty. Gen., and Harry L. Thomas, of Carrollton for the State.
The appellant and his wife were jointly indicted for making hootch, moonshine, and corn whisky, on or about July 27 1923. On a trial to a jury separate verdicts were returned finding each of the defendants guilty as charged in the indictment, and assessing the punishment of each at a fine of $ 500. A motion for new trial was sustained as to Mrs. Bauer and overruled as to Bauer. Sentence was pronounced in accordance with the verdict, and the defendant appealed.
The evidence for the state is that Lee Smith and Joseph Bailey went to Bauer's house on July 27, 1923, and bought corn whisky. Smith went into the kitchen, where he saw Robert Bauer, defendant's son, drain a can of mash, put it on the stove, and then connect a copper coil. Mrs. Bauer carried corn chops outside to her husband, who was stirring a barrel of mash, and they poured water into the barrel. Several hours later Smith returned to defendant's house. There was a still on the kitchen stove that would hold about 15 gallons; liquor was running out of it. Witness bought some of the liquor from Robert Bauer and drank it; it was corn whisky. There was a barrel of stuff there that looked like mash; it had some chops, and what looked like plums, mixed up with it.
The defendants, testifying, each denied having a still or that they ever made any whisky; denied having a son named Robert Bauer. Mrs Bauer said the mash was to feed their hogs. Lyman Wilcox, a former sheriff, testified he had searched defendants' house but found no still or whisky. That was in August and September, 1923. He found 25 or 30 gallons of fermented plums in a barrel and a 60-gallon barrel of corn mash, and it looked like there was sugar in it.
In rebuttal Tom Fleming testified the defendants had a son known as Robert, and that he left in the nighttime in August, 1923, and had not been seen since that time.
1. The demurrer to the evidence at the close of the case was properly overruled. There was no error in the instructions. They correctly declared the law on all questions arising in the case.
2. When Tom Fleming was offered as a witness in rebuttal, the defendant objected to his testimony because his name was not indorsed on the indictment. His testimony was strictly in rebuttal.
Section 3889, R. S. 1919, provides that the names of all material witnesses must be indorsed upon the indictment; other witness may be subpoenaed or sworn by the state, but no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed on the indictment unless upon the affidavit of the prosecuting attorney, showing good cause for the continuance.
'It must be presumed that this requirement was made for some just and wise purpose, and to give the person criminally charged the opportunity...
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