State v. Brown

• Decision Date: 02 April 1928
• Docket Number: 4512
• Citation: 71 Utah 381,266 P. 716
• Court: Utah Supreme Court
• Parties: STATE v. BROWN

266 P. 716

71 Utah 381

STATE v. BROWN

No. 4512

Supreme Court of Utah

April 2, 1928

Appeal from District Court, Fifth District, Iron County; George Christen, Judge.

Arthur Brown was convicted of persistent violation of the Prohibition Act, and he appeals.

AFFIRMED.

S. A King, of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

CHERRY J. HANSEN, J. and BARKER, District Judge, concur. GIDEON, J. did not participate. THURMAN, C. J., STRAUP, J., dissenting.

OPINION

CHERRY, J.

Defendant was convicted of persistent violation of the Prohibition Act (Comp. Laws 1917, §§ 3341-3381), and appeals. The information charged that, after a previous conviction of a similar offense, the defendant on January 30, 1926, unlawfully had in his possession a 10-gallon keg partially filled with moonshine whisky. Defendant at the time resided with his wife in a house situated at the mouth of a canyon in Iron county, a remote and isolated place about 3 miles from the main traveled road. On the day in question, the county sheriff and his deputy went to the vicinity and from a distance saw a man leave the defendant's house, go in a southwesterly direction a short distance into the trees, and return to the house. The officers then went to the house and found the defendant and his wife in the house. With defendant's permission the officers searched the premises. They found several empty gallon containers, a gunny sack half full of charcoal, sections of an oil stove, and a small whisky glass containing a very small quantity of moonshine whisky. Defendant stated that no one else had been around his place for several days. The defendant owned an automobile which was standing about 40 yards southwesterly from the house, near a corral. Secreted in a tree about 50 or 60 yards southwesterly from the house and about 20 yards from the automobile, was found a 10-gallon keg containing moonshine whisky. There were fresh tracks or footprints apparently made by a man leading from the house to the automobile and from the automobile to the tree where the hidden keg was found. The witnesses also observed a ring or impression in the soil which had the appearance of having been made by a barrel or keg. One officer said the man he previously saw leave the house went in the direction of where the keg was later found. Leading from defendant's house in a southeasterly direction for about one-half mile was a trial over which wood had been dragged, and from the end of the trail footprints and horse tracks in the soil led to a shack or dugout in which was found a still for the manufacture of intoxicating liquor, consisting of a copper boiler, copper coils, an oil stove, barrels of corn and bran mash, hydrometer, containers, etc., including a 2-quart bottle partly filled with alcohol. There were no tracks around the still except those leading from the still to the defendant's house and from the house to the still. The footprints were all evidently made by one and the same man. The horse tracks were said, after a comparison, to correspond with the tracks made by defendant's horse. A half of a pair of men's trousers found at the still was matched by the other half found at the dog-house near defendant's dwelling house. The oil stove at the still was in sections so it could be taken apart, and two sections found in defendant's house were similar to the sections found under the boiler. These and other circumstances tended to connect the defendant with the still. There was proof offered showing defendant's previous conviction of a violation of the Prohibition Act.

Defendant denied any knowledge or possession or connection with the still or whisky, and offered certain explanations concerning the articles found in his house. He was corroborated in part by the testimony of his wife.

Upon substantially the foregoing evidence the jury found the defendant guilty.

It is contended on this appeal that the conviction cannot stand because the evidence is insufficient to support the verdict, and because the court, over defendant's objection erroneously admitted evidence of the still, which it is claimed was irrelevant matter calculated to prejudice the defendant before the jury by connecting him with a separate and independent crime.

We are clearly of the opinion that the evidence was sufficient, as a matter of law, to warrant the jury in finding a verdict of guilty. It may be conceded that bare proof that hidden whisky was found on the premises of an accused person would not be sufficient in law to justify a verdict of unlawful possession. But here there are numerous additional circumstances tending to connect the defendant with the custody and possession of the keg of whisky found in the tree. The location of the premises, the tracks leading from the house to the still and to the place where the whisky was secreted, the absence of any indication that access to either place had been from any other direction or place, the finding of articles and materials in the house adapted for use in the operation of the still, and the testimony which in effect was that the defendant was seen to go from the house to the tree where the whisky was hidden and return to the house, and that shortly thereafter a small quantity of moonshine whisky was discovered in a whisky glass in the house, are all relevant circumstances which, taken together, constitute rather satisfactory and convincing proof that the defendant had the possession of the keg of whisky found in the tree.

The second ground for reversal is equally untenable. It is a general rule that evidence which tends to prove another and a distinct offense committed by the accused is not admissible to prove the crime charged. But this rule does not go to the extent of excluding relevant evidence. When evidence is relevant in itself, it is not rendered inadmissible because it proves or tends to prove another and distinct crime. 16 C. J. 588; Underhill Crim. Ev. (2d Ed.) pp. 163, 164. We think it plain that evidence that the defendant had a connection with a nearby still where moonshine whisky could be made and obtained has a relevancy to the question of defendant's possession of the keg of whisky found hidden in the tree, because it shows the ability, means and opportunity for coming into possession of it. It is more likely that a person going to and from an illicit still would have moonshine whisky in his possession than one who had not done so. The evidence complained of was admissible because it was relevant to the issue of defendant's guilt of the offense charged. Evidence of this character is uniformly admitted in cases of this kind. Thompson v. State, 99 Tex. Crim. 470, 269 S.W. 1048; Kendall v. Com., 202 Ky. 169, 259 S.W. 71; Dameron v. State, 97 Tex. Crim. 172, 260 S.W. 855; Kelly v. State, 95 Tex. Crim. 138, 252 S.W. 1065; State v. Work, 47 S.D. 649, 201 N.W. 553; State v. Simons, 178 N.C. 679, 100 S.E. 239; Com. v. Abel, 84 Pa.Super. 102; People v. Petrovich, 67 Cal.App. 405, 227 P. 978; People v. Malone, 68 Cal.App. 615, 229 P. 1000; Keith v. U.S. (C.C.A.) 11 F.2d 933.

The judgment is affirmed.

HANSEN, J. and BARKER, District Judge, concur.

GIDEON J., did not participate herein.

DISSENT BY: THURMAN; STRAUP

THURMAN, C. J. I dissent from the opinion of the majority, not because the evidence was insufficient to sustain the verdict, but because evidence was admitted, over defendant's objection, which, in my opinion, was irrelevant and inadmissible. I object to that portion of the evidence, not only because it was irrevelant for reasons I will state, but because it tended to prove another offense than that charged in the information, and thereby tended to prejudice the defendant and prevent him having a fair trial. The rule against admitting such evidence should be rigidly enforced by the courts in order to give a defendant in a criminal case a fair and impartial trial, as contemplated by the Constitution and laws of the state.

The operation of a still and the manufacture of intoxicating liquor is a distinct offense from that of having such liquor in one's possession. The offense charged against the defendant is his having in his possession a 10-gallon keg partially filled with moonshine whisky. No suggestion is made as to the operation of a still and the manufacture of whisky or other intoxicating liquor. The defendant pleaded not guilty as to the offense charged, and went to trial. While it would be going too far to admit that the evidence was conclusive against him, I will admit it was sufficient to justify the jury in finding him guilty. The majority opinion fairly reflects the evidence in that respect. Some one was seen by the officers going from the house in the direction of the trees and returning. The officers investigated and found fresh tracks, apparently made that morning, leading from the house to the trees and returning to the house, and upon inquiry of the defendant learned that no one but he and his wife had been there for several days. Among the trees to which the tracks led, the officers found a 10-gallon keg partially filled with moonshine whisky and also found a small quantity of whisky in a glass in his home and other inculpatory evidence. This evidence alone without a satisfactory explanation was sufficient to justify the verdict of the jury. But, after such evidence was admitted, the state, over defendant's objection, was permitted to introduce evidence to show that a still was found about a half mile away from the premises of defendant, and that too, as I contend, without any sufficient connection to show that the evidence was relevant or material to the offense charged in the information. It tended to show another and distinct...