State v. Duffy

• Decision Date: 17 February 1931
• Citation: 295 P. 953,135 Or. 290
• Parties: STATE v. DUFFY ET AL.
• Court: Oregon Supreme Court

295 P. 953

135 Or. 290

STATE v. DUFFY ET AL.

Supreme Court of Oregon

February 17, 1931

Department 1.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

J. C Duffy and another were convicted for setting up and operating a distillery, and they appeal.

Affirmed.

The two appellants, together with a third individual, Elsie Gephart were indicted and tried for the crime of setting up and operating a distillery. The appellants were found guilty and have appealed. The assignments of error may be satisfactorily stated thus: (1) The circuit court erred when it denied the motions of the appellants to suppress as evidence several articles of property, including a still, in the possession of the state at the time of the indictment, which the appellants claim the arresting officers seized in violation of the provisions of the federal and Oregon Constitutions which grant security against unreasonable searches and seizures (2) in failing to instruct the jury upon the crime of attempting to set up and operate a distillery in addition to the crime charged in the indictment.

Paul M. Long and Frank E. Swope, both of Portland for appellants.

Cleo W Kirk, of Portland (Stanley Myers, of Portland, on the brief), for the State.

ROSSMAN, J. (after stating the facts as above).

A brief review of the proceedings had in the circuit court is necessary as a prelude to a consideration of the assignments of error. We shall first review the testimony adduced upon the motion to suppress the evidence. Four peace officers had information that a distillery was in operation in a house located on Council Crest drive, which is a street in a residential section of Portland known as Portland Heights; their information, however, did not mention any particular house. Having this information, the officers drove to Council Crest drive, and when they were approximately half a block distant from No. 993, being the premises in question, they detected an odor of what they described as "mash cooking." Due to the contour of the land, or the irregular direction of the streets, the officers were able to approach very close to the rear of the above-described house without leaving the public streets, and there became satisfied that the odors which reached them were produced by the operation of a still in that house. They described these odors as "a very strong odor of mash smell. * * * We also got, later on, an odor of fumes from the still. * * * As we got up to the house we got an odor of coal oil smell. * * *" The evidence does not indicate whether there were any other houses in the vicinity of No. 993 Council Crest drive. Having become satisfied that in the house just mentioned a distillery was in operation, two of the officers went to the rear door and rapped, while the other two remained in the street in front of the premises. Presently the defendant Mrs. Gephart opened the door. The officer who had rapped on the door testified:

"She recognized me and I told her that we wanted in and she opened the door and we went in.

"Q. You say she recognized you? A. Yes.

"Q. Did you tell her that you were an officer? A. She knew me.

"Q. She knew you? Did she ask you whether you had any authority to enter? A. She opened the door and we got inside, and she asked me if I had a search warrant, and I told her we didn't need any."

Having entered, the officer at once noticed that the odors which he had detected came from upstairs, and went there while the other remained with Mrs. Gephart. The second story of the house was unfurnished; but in one of its rooms the officer found a still of about 225 gallons' capacity which was producing whisky at the rate of 5 gallons every 20 minutes; also 1,200 gallons of mash, 180 gallons of whisky, and "other stuff that was up there, coal oil and such as that." The appellant Duffy was in active charge of the still. He and Mrs. Gephart were at once arrested and sent to the county jail. These events occurred at 4 p. m. Next the distillery was dismantled and the mash was destroyed. At about 8:15 in the evening an automobile approached the house upon a private driveway and stopped after having entered upon the premises. When two of the officers approached the car, its occupants immediately endeavored to drive away by backing into the street. Their haste was so great that one of the officers, who was to the rear of the car, was almost run over. When the car stopped the occupants were arrested and searched. Whether the search preceded the arrest or followed it was not made clear at the time when the testimony was taken upon the motion to suppress the evidence. The officers, in explanation of the arrest and search of the two occupants, who were the appellant Knox and a Mr. Elkins, testified that a felony had been committed in the house and "that they drove into the place and stopped and when we went out to talk to them they attempted to get away." In Knox's pockets was found a number of papers, and in the automobile was discovered two copper "baffle plates" which were extra parts for the distillery. Upon experiment it was discovered that these baffle plates fitted into their proper place in the still perfectly. More clothing was found in the house than was useful for Duffy, and the officers believed that some of this was of an appropriate size for Knox. The appellants, in support of their motion, contented themselves with an account of their connection with the above premises as is narrated in two documents, which possibly can be regarded as affidavits. These writings are somewhat barren of details; each is verified by one of the appellants. The one, which is supported by Duffy's oath, is predicated upon the recital: "Said officers saw no crime committed in their presence prior to said search and seizure and had no probable cause to believe that defendant prior to such entry had committed any crime." The affidavit of Knox confines itself to the circumstances attendant upon his arrest. It avers that the search of his person preceded his arrest, and states facts which probably warrant an inference that his attempt at flight was occasioned by a fear lest the officers were highwaymen. His statement denies that he had committed any crime, and avers that he had no connections whatever with the premises at No. 993 Council Crest drive. Both motions were overruled and upon the trial all the aforementioned testimony was repeated, amplified somewhat by attendant details. All four officers testified to an extended experience with the enforcement of the prohibition laws and described their familiarity with the operation of distilleries; they added that the odor emanating from the house was caused by mash which was being prepared for distillation and from a still in active operation. This testimony met with no denial except Knox's testimony that when he approached the house he detected no odors. However, his car was an inclosed one, and at that time the distillation had stopped. It also developed upon the trial that before the officers entered the house they informed Mrs. Gephart that they were peace officers, and that when they approached Knox's automobile one of them displayed his star by holding it in such a manner that the lights of the automobile shone upon it. At the trial it further appeared that a large number of papers, consisting principally of receipts for money, was found in the house bearing the name of J. L. Morgan. These receipts covered items paid for rent, electrical power, telephone service, gas, groceries, etc. The state's evidence indicated that when Knox was arrested he stated that his name was Morgan, and there was found upon him papers similar to those found in the house also containing the name of Morgan. Another paper found upon Knox was an invoice sheet upon the billhead of the Pacific Metal Company for items amounting to $23.17 consisting of bar solder, copper rivets, and sheet copper; it bore the name of J. S. Clement. Immediately following his arrest Knox made several statements wherein he revealed familiarity with this still and the operations which were being conducted at the above premises. These admissions could readily have prompted the conclusion that he was the proprietor of the establishment at 993 Council Crest drive. Knox denied that he had made these admissions, and testified that he had no connections whatever with the above premises and the unlawful operations which were being conducted there. Duffy admitted that he was engaged in the operation of the still at the time of his arrest and testified that one by the name of J. L. Morgan had hired him to operate it for a wage of $10 per day. He stated that Knox was not Morgan.

The appellants insist that the circuit court erred when preliminary to the trial, it denied their motions to suppress as evidence the still, whisky, mash, baffle plates, written instruments, etc., and that it again erred when it received in evidence during the course of the trial these articles over their objections. It requires no argument to establish the relevancy of the still, whisky, and mash. The baffle plates, having been taken from the automobile in which Knox was riding, likewise became relevant when it appeared that these plates fitted perfectly into the still. Knox asserted, at the time of his arrest and also at the trial, that Elkins, who was his fellow occupant of the automobile, had no connections whatever with the still nor with the baffle plates; he vouched for Elkins' innocence. Hence the baffle plates were in Knox's possession. The relevancy of the papers bearing the name of Morgan, and found in the house, and also those discovered upon the person of Knox, became apparent when it appeared that practically all of them bore the address "993 Council Crest Drive" and...