State v. Decker

• Decision Date: 02 March 1929
• Docket Number: No. 29445.,29445.
• Citation: 14 S.W.2d 617
• Parties: THE STATE v. TENNIS DECKER, Appellant.
• Court: Missouri Supreme Court

14 S.W.2d 617

THE STATE v. TENNIS DECKER, Appellant.

No. 29445.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Pulaski Circuit Court. — Hon. W.E. Barton, Judge.

REVERSED AND REMANDED.

Phil M. Donnelly for appellant; I.W. Mayfield & Son of counsel.

(1) Defendant was entitled to show the statements, acts and inducements of Ousley. The sheriff admitted he was hired, and this was a matter for the consideration of the jury. (2) When requested the court should have instructed the jury on all questions of law. Sec. 4025, R.S. 1919. The court should have defined "moonshine" and instructed the jury as to what was intoxicating liquor, and they should have found that "moonshine" is intoxicating liquor as a matter of fact. Sec. 6602, R.S. 1919; State v. Pinto, 279 S.W. 148; State v. Brock, 280 S.W. 50. (3) To permit the prosecutor to inquire into detail as to the former conviction was error. State v. Spivey, 191 Mo. 110. Being admitted for specific purpose, the court should have so instructed. State v. Jones, 268 S.W. 87. This statute permitting the State to show former conviction must be strictly construed. State v. Jones, 268 S.W. 86. Under the facts the court should have instructed the jury on the acts of Ousley. (4) The evidence showed more than entrapment. It showed an actual participation by Ousley. Decker had no intention to manufacture intoxicating liquor; he was approached by Ousley to violate the law; he refused. Later Ousley laid all of the plans and put everything into execution with the consent of the sheriff, and then induced Decker to come to the place so the sheriff could arrest him.

Stratton Shartel, Attorney-General, and Claud E. Curtis, Special Assistant Attorney-General, for respondent.

(1) The evidence was sufficient to make a case for the jury. State v. Sandoe, 289 S.W. 890; State v. Polson, 295 S.W. 743; State v. Gensler, 295 S.W. 1081. (2) The court did not commit error by excluding testimony of defendant's witness to the effect that certain parties had urged the defendant, sometime before his arrest, to engage in the making of whiskey, and that the defendant had refused to have anything to do with the making of whiskey. Such statements were self-serving and were inadmissible. State v. Dunn, 179 Mo. 95, 117; State v. Atchley, 186 Mo. 174; State v. Tracy, 294 Mo. 372. (3) It is not necessary to define "corn whiskey," "hootch," "manufacture," "brew," etc. State v. Marshall, 297 S.W. 63. (4) There is no merit in defendant's assignment that the trial court committed error by failing to instruct the jury on all the law of the case, and, in particular, by failing to instruct the jury that if the defendant was entrapped into the commission of the crime with which he was charged, they were to find him not guilty. Entrapment does not prevent conviction of violating prohibition laws, as criminal intent need not be shown. State v. Broaddus, 289 S.W. 792; State v. Sheeler, 7 S.W. (2d) 340. Since this matter was not an element of the crime it was not mandatory upon the court to instruct the jury with reference to entrapment, and if the defendant desired such an instruction he should have drawn one and requested the court to give it. This is elementary law and citation of authority is unnecessary.

DAVIS, C.

In an information filed in the Circuit Court of Pulaski County, the defendant herein was charged with manufacturing, on August 21, 1926, hootch, moonshine, corn whiskey. The verdict of the jury was guilty as charged in the information, and his punishment was assessed at two years in the penitentiary. Defendant appealed.

The State's evidence warrants the finding that, during the summer of 1926, the Sheriff of Pulaski County employed Luther Ousley and Fred Ruhl for compensation to aid in catching lawbreakers and particularly defendant, surmised by the sheriff to be such. On August 13, 1926, Ousley on a dark night directed the sheriff, accompanied by his son and Ruhl, to a barrel of corn-chops mash, cached behind a log and imbedded in the ground within a few inches of the top, on the bank of the Gasconade River in Pulaski County. Across the river defendant lived with his father on the latter's farm. The barrel was located about two miles from the county road, and from first viewing it until defendant's arrest the sheriff kept the place under espial. On the night of August 20, 1926, the sheriff, by prearrangement, went to the home of Ousley and then to that of Ruhl and was told by them that a run of whiskey would be made the next morning. Around three o'clock on the morning of August 21, 1926, the sheriff and his son stationed themselves near the barrel, and between daylight and sun up, they saw defendant, carrying a worm, approach a boat moored to the opposite bank, accompanied by an unidentified man bearing a cream can. They entered the boat and defendant rowed it to a point near the barrel. Shortly thereafter, the sheriff and his son quietly departed, and went to the homes of Daniel Nicks and Bill Nicks, deputizing them and their sons. At nine:thirty A.M. the posse returned and, separating, closed in on the place from different directions. The defendant was seen to put wood on the fire. The sheriff halloed to defendant to stick them up, but he fled into the river, with the sheriff and his son shooting around him. After a parley, the defendant returned to the shore and was arrested and handcuffed. They returned to the barrel and found the cream can full of mash, with a fire under it, and a coil running from it through a barrel of cool water and dripping into a jar. The jar contained a tablespoon or so of moonshine whiskey.

While in jail, defendant was interrogated by Ousley at the instance of the sheriff, and was heard by him while concealed to say, "Oh, my God, he has got me now. I am sure for the penitentiary. My reputation is ruined." Ousley asked, "Well, why didn't you do what you were going to do before you got caught?" Defendant replied: "Well, I tried to get the s____ o____ b____, but I couldn't get my man down here from Jefferson City." On the day following, in the sheriff's office, the sheriff said that defendant admitted that the confiscated worm was the same worm that defendant recovered from Dick Bowers after lending it to him; and that defendant admitted that something was said about having the sheriff killed in a previous conversation with Bowers and one Russell, but that defendant denied that he was the man that was going to have it done. The Sheriff of Laclede County and his son, present on the occasion, testified that defendant said that he let Bowers and Russell have a barrel and a worm.

The State's evidence further develops that Ousley was present at the time of defendant's arrest, a few yards away, and was covered by a gun in the hands of a posseman, while lying on the ground, but was told by the sheriff's son not to shoot, as Ousley was all right. Ruhl was also present. Neither Ousley nor Ruhl was arrested. At the conference the night before, Ousley and Ruhl agreed with the sheriff to meet defendant about daylight the next morning.

The defendant testified, in substance, that Ousley approached him in June, 1926, and asked him to make moonshine whiskey. Upon stating that he refused to do so, the State objected and the court sustained it, and ordered that the answer be stricken out, and the jury were instructed not to consider it on making up their verdict. Defendant said that Ousley and Ruhl were at his home the evening before he was arrested, and he agreed to meet them at the river the next morning, and that on the next morning he rowed them across the river. Ousley had a cream can and a copper coil, which he took over in the boat and unloaded. Defendant then went down the river to his trot-lines. About an hour later, while employed on his trot-lines, Ousley shouted to him to come over, and he did so. When he had been there about two minutes, Ousley said, "The fire is getting pretty hot, rake it out," and defendant picked up a little stick, but before he could touch the fire, the sheriff said, "Stick them up." Defendant then jumped over the bank into the river, but was shot at by the sheriff, who threatened to kill him if he did not return, whereupon he submitted to arrest, and was handcuffed. Defendant stated that he did not start the fire or have anything to do with it that morning; that Ousley brought out a sack of sugar and left it in the weeds, and while he surmised his purpose, they had no conversation regarding it. Later Ousley brought out a cream can, and asked defendant what to do with it. Defendant said that he did not know what he was going to do with it; to take it way, as he did not want to have anything to do with it. Defendant stated that he did not make or manufacture whiskey on the day in question. He denied admitting that the coil belonged to him, or that he was in a plot to kill the sheriff, or that he knew of the equipment found there until that morning. When he jumped in the river, he said he saw that he was not in the right place and he knew that things were wrong before the advent of the sheriff. Defendant admitted that he had been convicted of selling whiskey.

The testimony of witness Ruhl for defendant tends to show that in 1926, in connection with Ousley, he was hired by the sheriff to catch defendant making whiskey. Ousley was the one who led and discovered to them, in the first instance, the mash barrel. The evening before the arrest, they went to defendant's home to get him to make whiskey, and Ousley offered defendant twenty dollars to make it without Ousley being present, but defendant refused, telling Ousley he would have to be there. Ousley said he intended making whiskey the next morning, and made arrangements to meet defendant at the river. Ousley brought the coil and the cream can to the boat and defendant rowed them over. Witness knew the sheriff was attempting to catch defendant. Ousley unloaded the coil...