State v. Day
| Decision Date | 06 December 1922 |
| Docket Number | No. 3195.,3195. |
| Citation | 245 S.W. 571 |
| Parties | STATE v. DAY |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Texas County; W. B. Woodside, Judge.
Grant Day was convicted of unlawfully manufacturing intoxicating liquor for beverage purposes, and he appeals. Reversed and remanded.
The information charges that defendant on the ___ day of April, 1921, at the county of Texas in the state of Missouri, did then and there unlawfully manufacture certain intoxicating liquor for beverage purposes, to wit, one gallon of whisky." A jury was waived, and trial had before the court. Defendant was found guilty and his punishment fixed at a fine of $100, and he appealed. Neither side is represented here. We have frequently expressed our opinion as to the duty of a prosecuting attorney to follow up a misdemeanor appeal. The law directs that he should do this. Section 736, R. S. 1919.
A complete transcript of the record is before us. From the motion for a new trial It appears that defendant makes the following complaints: (1) That the court erred in permitting the prosecuting attorney, after the trial had commenced, to amend the information; (2) that error was committed in permitting the indorsement of the witnesses on the information after the trial had commenced, and refusing to grant time thereafter to defendant to make an investigation as to the knowledge of facts touching his guilt possessed by these witnesses; (3) that error was committed in the admission of evidence obtained wrongfully and without a search warrant; (4) that error was committed in the admission of other incompetent evidence; (5) that the evidence is not sufficient to support a conviction.
We have grouped the grounds set up in the motion for a new trial, and have concluded that it is only necessary to consider the fifth one as we have numbered them. Defendant was charged with manufacturing whisky. The evidence tended to show that defendant had violated the prohibition statute in other respects, but there is no evidence that he manufactured whisky. Effie Day, a daughter-in-law of defendant, and admittedly hostile, testified that Lawrence Gale and Harry Day, son of defendant, operated a still in a hollow near defendant's home, and that defendant sold some of the whisky; but she stated that he had no interest in the still and did nothing and furnished nothing unless it was some corn. There is no claim, however, that the whisky was made from corn. It was a molasses variety. Effie Day does not say that defendant furnished corn. She says that "they" got corn at defendant's. The evidence shows that defendant's son had his corn cribbed at defendant's, and this is not questioned. Neither was the still found on his land. The sheriff testified that he knew nothing about defendant manufacturing whisky; he searched defendant's house and...
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