State v. Carter, 30683.

• Decision Date: 25 March 1931
• Docket Number: No. 30683.,30683.
• Parties: STATE v. CARTER et al.
• Court: Missouri Supreme Court

36 S.W.2d 917

STATE v. CARTER et al.

No. 30683.

Supreme Court of Missouri, Division No. 2.

March 25, 1931.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

Nick Carter and another were convicted of felonious manufacture of hooch, moonshine, corn whisky, and they appeal.

Reversed and remanded.

Richeson & Richeson, of Potosi, for appellants.

Stratton Shartel, Atty. Gen. (Otis Patterson, of Springfield, of counsel), for the State.

DAVIS, C.

The prosecuting attorney filed a verified information in the circuit court of Washington county charging defendants with the felonious manufacture of "hooch, moonshine, corn whisky." Two trials were had. On the first trial, the jury disagreed and were discharged. On the second trial, defendant Carter and defendant Greenia, in separate verdicts, were found guilty as charged in the information, and the punishment of each was assessed at a fine of $500. Both defendants appealed from the judgments entered.

The evidence adduced by the state warrants the finding that, about sundown, on September 11, 1928, Constable Ransdall, by virtue of a search warrant issued to search the premises of defendant Carter, made a search thereof, but he and his deputies were unable to find anything. Thereupon, unwarrantedly, he made a search of the premises of Henry Dennis and a Mr. Bean. Evidence of the illegal manufacture of whisky was found on the premises of Dennis, which was estimated at from three-quarters to a mile and a half from Carter's home. The premises of Carter did not enjoin the premises of either Dennis or Bean. On making the search on Dennis' premises, while going up a creek, they came upon Greenia, who inquired regarding their purpose there, and, upon telling him that they were looking for a still, the officers asked, "What do you know about it." Greenia replied, "I don't know anything." Greenia was then arrested. He did not attempt to escape. They proceeded up the ravine about one hundred or one hundred and fifty yards, and there found a stone furnace with fire under it, and ten gallons of moonshine whisky, together with a five-gallon jug half full and fifteen gallons of mash; also several barrels of mash, probably corn mash, of about thirty-two gallons to the barrel. Subsequent to sending for a truck, the constable said to Greenia: "Now Clarence, you are not in on this alone. You don't want to stand the punishment or fine or anything by yourself. Tell me who your partner is." Greenia answered: "I am working for the other man and I am not going to give him away." The constable said, "All right." After taking Greenia to the justice court, the constable called Carter about 9 o'clock that night to come in and sign Greenia's bond. The next morning the deputies returned to the scene and found four barrels of mash, three or four one-hundred-pound sacks of sugar, a dismantled still and a mash tester, some empty kegs, and other things. The tester was found in mash upon dumping it from a barrel. On the tester was the name "R. N. Carter" in typewriting. One of the deputies, upon going about one hundred and fifty yards further up the ravine and over a hill, came on defendant Carter, sitting by a cedar tree with a basket beside him.

A deputy said he came upon Carter a little way over a hill, and, upon inquiry, Carter said he was waiting for Greenia. He told him not to wait as they had arrested Greenia. The deputy then told him that he was sorry that he had been deputized, and said that he did not want him to think hard of him, and Carter said he would not. Witness said he did not accuse Carter of anything.

Defendant's evidence. Greenia testified that he had been fishing and was going down to Dennis' pond when the officers came upon him. He did not have anything to do with the still. It was three or four hundred yards from where he was accosted to the still where, under arrest, he accompanied the officers. He said the constable asked him to tell what he knew about the still, and he replied that he was working for wages, and, if he knew anything, he would not tell it. On cross-examination, he said that he did not tell the constable that he was working for wages. He told him that he was working for a man, and, if he said anything about it, he could not keep the job. He told him he did not know anything about it. He told him he could not get a job anywhere if he told anything he saw.

Carter testified that he farmed an 80-acre tract of land in Washington county. He told the deputy that he had no ill will against him, because he was not implicated in the business. He was lying down by the roots of a cedar tree waiting for Greenia when the deputy accosted him. He denied having anything to do with the equipment. He said he had been fishing all day and had three or four fish in the basket, and a hook and line. He denied receiving the mash tester through the mail, and said that he saw it for the first time in court.

In rebuttal, a state's...