State v. Campbell

Decision Date08 January 1926
Docket NumberNo. 3985.,3985.
PartiesSTATE v. CAMPBELL.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

Houston Campbell was convicted of possessing intoxicating liquor, and he appeals. Reversed and remanded.

BRADLEY, J.

Defendant was convicted of unlawfully possessing intoxicating liquor, and appealed. Many assignments are made in the motion for a new trial, but the separate disposition of all will not be necessary.

Under a search warrant, defendant's premises were searched, and in the spring house a 10-gallon keg was found from which the officers drained about a half pint of what they pronounced corn whisky. The three officers making the search testified that they tasted the liquid at the time of the search, and that in their judgment it was corn whisky.

The liquid was obtained in October, 1924, and on that day was sealed in a fruit jar by the deputy sheriff and by him kept until the trial on March 10, 1925. Defendant testified that he got the keg from his brother to put kraut in, that he rinsed it out and left it open in the spring house, and that he put no whisky in the keg and had none in it. The brother from whom defendant got the keg testified that he got this keg with others in Salem, Mo., and had the others at the place where he was making molasses on the day the search was made, and that the keg defendant had and the others were cider kegs. Defendant put witnesses on the stand whose evidence tended to show that the liquid in the fruit jar at the trial resembled in appearance such as might be drained from any cider keg that had been rinsed out and not well drained; also defendant put witnesses on the stand who tasted the liquid in the fruit jar and said that it was not whisky. Defendant offered evidence tending to prove that a fair grade of corn whisky, well sealed in a fruit jar, would not deteriorate to any great extent. When one of the searching officers was on the stand in rebuttal, one of the jurors asked him to taste the contents of the fruit jar. He did so, and said: "No; that is nothing to compare with what it was when I got it. That still has a kind of whisky taste to it, but not strong like when I got it. This is identically the same jar, because I kept it sealed up and locked up down here in the office." In rebuttal, the state offered evidence tending to show that what is commonly called moonshine whisky may be of various colors.

From this record, it is plain that the issue on the contents drained from the keg was sharply drawn. The jury found the defendant guilty, and fixed his punishment at a fine of $200, the least penalty prescribed. Notwithstanding the sharply contested issue, the court gave this instruction:

"The court instructs the jury in this case you should find and believe from the evidence that the liquor in question, referred to in the evidence, is whisky, an intoxicating liquor, containing one-half of 1 per cent., or more, of alcohol, fit for use for beverage purposes, at the time in question in October, 1924, when...

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10 cases
  • State v. Taylor
    • United States
    • United States State Supreme Court of Missouri
    • July 1, 1932
    ...said: "Gentlemen of the jury, you know that my recommendations in all cases are fair and that I would not advise you wrongly." State v. Campbell, 278 S.W. 1051; State v. Nicholson, 7 S.W. (2d) 375; State v. Baldwin, 297 S.W. 10. (11) The circuit court erred in refusing to discharge the jury......
  • State v. Williams
    • United States
    • United States State Supreme Court of Missouri
    • October 18, 1935
    ...130 Mo. App. 316; State v. Briggs, 281 S.W. 107; State v. Woodward, 90 S.W. 90, 191 Mo. 617; State v. Bundy, 44 S.W. (2d) 121; State v. Campbell, 278 S.W. 1051. Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for (1) The information is not challenged and ......
  • State v. Williams
    • United States
    • United States State Supreme Court of Missouri
    • October 18, 1935
    ...821, 130 Mo.App. 316; State v. Briggs, 281 S.W. 107; State v. Woodward, 90 S.W. 90, 191 Mo. 617; State v. Bundy, 44 S.W.2d 121; State v. Campbell, 278 S.W. 1051. McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent. (1) The information is not challe......
  • State v. Taylor
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1932
    ...... mistrial when Mr. H. C. Smith, prosecuting attorney, in the. course of his argument to the jury, after recommending the. death penalty, said: "Gentlemen of the jury, you know. that my recommendations in all cases are fair and that I. would not advise you wrongly." State v. Campbell, 278 S.W. 1051; State v. Nicholson, 7. S.W.2d 375; State v. Baldwin, 297 S.W. 10. (11) The. circuit court erred in refusing to discharge the jury and. declare a mistrial when Mr. Don Purteet, Assistant. Attorney-General, in his argument to the jury, said:. "Gentlemen of the jury, the eyes ......
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