State v. Baumann
| Decision Date | 31 December 1927 |
| Docket Number | No. 27413.,27413. |
| Citation | 1 S.W.2d 153 |
| Parties | STATE v. BAUMANN. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Barry County; Charles L. Henson, Judge.
Eugene L. Baumann was convicted of manufacturing corn whisky, and he appeals. Affirmed.
North T. Gentry, Atty. Gen., and David P. Janes, Asst. Atty. Gen., for the State.
Appellant was convicted in Barry county of the felony of manufacturing corn whisky. Laws 1923, p. 242, § 21. The jury assessed his punishment at imprisonment in the county jail for 3 months and a fine of $500. After unsuccessfully moving for a new trial and in arrest of judgment, he was sentenced on the verdict and was granted an appeal to this court. For some reason not disclosed by the record, the transcript found its way to the Springfield Court of Appeals and that court promptly transferred the case to this court.
Appellant was found guilty on June 26, 1925. The record contained no entry showing that he had been sentenced on the verdict. After the case reached here, the Attorney General moved that the case be remanded for judgment. That motion was sustained and, in pursuance to our mandate to that end, judgment was thereafter entered in the trial court upon the verdict rendered before the premature appeal was granted, and a second appeal was thereafter granted. The case is thus before us.
The appellant has filed no brief in this court, and we must look to the motions for new trial and in arrest of judgment, filed before the first appeal was granted, for the errors assigned. Said motions were filed before the effective date of the 1925 act abolishing motions in arrest and requiring motions for new trial to set out specifically, etc., the grounds relied upon for new trial. Laws 1925, §§ 4079 and 4080, p. 198.
The evidence offered by the state tended to show the following facts: On October 26, 1924, Constable J. A. Johnson, of Monett, accompanied by Flemming Dummitt and John Tate and armed with a search warrant, the validity of which is vigorously assailed, visited the Emily Vogt farm, in Barry county, about 4 or 5 miles from Monett, where appellant and his family resided. Tate and Dummitt had previously ascertained that appellant and his family were absent, and one of them had visited appellant's farm that morning and had peeped through a window in a rock cellar and had observed a still. It was at their instance that the search warrant was issued. Appellant and his family were absent when the constable and party arrived.
There was a rock cellar near appellant's house. It was locked. The officer forced an entrance and found about 20 gallons of fermented mash, about 5½ gallons "single run" corn whisky, a cooling keg and coil, a boiler, and a 3-burner oil stove. These appliances were set up and ready for operation as a still. The boiler was warm when the discovery was made, although the oil stove was not burning at the time. Such facts tended very strongly to prove that the still had been used very recently by some one in making corn whisky.
Appellant and his wife testified that none of the articles found in the cellar were there the night before. Appellant admitted occupancy and control of the cellar. The inference which appellant sought to have the jury draw was that some one had "planted" the still and the liquor in the cellar on his premises. No motive for such an act was disclosed. Other witnesses were called who had been in the cellar two or three days before and had observed no still.
The verdict of guilty conclusively demonstrates that the jury discredited the story of appellant and his witnesses, and, as appellant admitted occupancy and control of the cellar, there was nothing for the jury to do except to find that appellant was the owner of the still. The finding of the "single run" corn whisky, the boiler still warm, and the other circumstances detailed fully warranted the finding of the jury that appellant was making corn whisky, as charged in the information.
Appellant offered several witnesses who testified that he bore a good reputation as a truthful and law-abiding citizen. Evidence of this kind may have induced the jury to impose a light punishment. At least they followed the admonition of the court that, if they believed appellant to be guilty of the crime charged, his previous good character could not justify, palliate, or excuse its commission.
Complaint is made, in the motion for new trial, of the action of the court in overruling appellant's motion to quash the search warrant and to suppress the evidence seized thereunder. The action of the trial court in admitting in evidence the still, equipment, and corn whisky obtained under such search warrant is also assigned as error. The reasons urged are practically identical with those considered by this court in State v. Halbrook, 311 Mo. 664, 279 S. W. 395, and more recently in the case of State v. Naething (No. 27787) 300 S. W. 829, decided at the present term upon authority of the Halbrook and other cases. No good purpose will be served by going over the ground again.
Appellant offered in evidence the application for the search warrant and also the search warrant with the return of the officer. Said instruments are in practically the same language as were those in the Naething Case. It was also shown that the justice of the peace made no record of his action in finding that probable cause existed for issuing the search warrant. How the subsequent action of the justice or his failure to act could possibly destroy the validity of a search warrant properly issued and valid when issued, we are not advised. On the authority of the Halbrook and Naething Cases and the cases there cited and discussed, the assignments of error in overruling the motion to suppress and in admitting in evidence the still and liquor must be overruled.
Complaint is made that the court erred in admitting incompetent, irrelevant, and immaterial testimony offered by the state and in excluding competent, relevant, and material testimony offered by the appellant. As the motion for new trial was filed before Laws of 1925, § 4079, p. 198, became effective, the assignments are sufficient to require us to examine the record covering the admission and rejection of testimony.
We have carefully read the entire record with these assignments in mind and discover in the entire record but two or three rulings upon the admission of evidence offered by the state. In those instances specific objections were not made by appellant, and, even if sufficiently specific objections had been made, the testimony admitted did not prejudice the substantial rights of the defendant. We fail to find any evidence offered by appellant which was excluded by the court. There is no merit in such assignments.
Complaint is made that instructions 1, 2, 3, 4, and 5, given by the court, are erroneous. Instruction 1 is as follows:
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