State v. England and Burton

• Decision Date: 18 December 1928
• Docket Number: No. 29113.,29113.
• Citation: 12 S.W.2d 37
• Parties: THE STATE v. BUCK ENGLAND and FLOYD BURTON, Appellants.
• Court: Missouri Supreme Court

12 S.W.2d 37

THE STATE v. BUCK ENGLAND and FLOYD BURTON, Appellants.

No. 29113.

Supreme Court of Missouri, Division Two.

December 18, 1928.

Appeal from Hickory Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

C.I. Bennington, J.W. Palmer and Amos Short for appellant.

(1) The mere presence of one at a still is not sufficient to convict. State v. Pope, 269 S.W. 411; State v. Dilldine, 269 S.W. 653; State v. Frasier, 269 S.W. 410. (2) The case must be tried in the county in which the crime has been committed. As the crime was committed according to the evidence in Benton County, instead of Hickory County, the court erred in not transferring this cause to the proper county having jurisdiction. Sec. 3959, R.S. 1919. (3) The court erred in permitting the State, after the close of the State's testimony in chief, to introduce the still or purported still and equipment, together with the alleged liquor, for the reason that such was not proper rebuttal evidence; after the close of the State's evidence nothing which does not bear directly upon the subject-matter of the defense should be admitted in rebuttal after the defense has closed its testimony in chief. State v. Phillips, 233 Mo. 299; St. Charles v. Meyer, 58 Mo. 86. (4) The court erred when it did not discharge the jury after remarks of the prosecuting attorney in which he referred to defendants not taking the witness stand in their behalf, although the court did reprimand the prosecuting attorney and instructed the jury orally not to consider the remarks. The sting and poison still remained in the minds of the jury and could not be removed by the action of the court. Particularly so when due objection and exception were made by defense counsel. State v. Snyder, 182 Mo. 462; State v. Maxley, 102 Mo. 374; Sec. 4037, R.S. 1919; State v. Martin, 74 Mo. 547; State v. Byrd, 213 S.W. 35. (5) The jury should have been instructed in writing and not orally. Oral instructions are expressly prohibited. Sec. 4025, R.S. 1919; State v. Shipley, 174 Mo. 512. (6) The court, upon the showing of the defendant that his witness was a very material one, in that he expected to prove an alibi by him, should have granted an application for a continuance, especially in view of the action of the prosecuting attorney in writing the witness that his attendance was not necessary, after the defendant had duly subpoenaed the witness, who lived fifty miles from the place of trial. State v. Dewill, 152 Mo. 76; State v. Maddox, 117 Mo. 667.

Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) It is proper in such a case as this to introduce the liquor in evidence. The practice of labeling same is not required, and is for the sole purpose of rendering identity more certain. In any case, its identity is a question for the jury. State v. Nordseick, 295 S.W. 808; State v. Broaddus, 289 S.W. 792. (2) The question of ownership of the still is not an issue in the case; consequently, failure to instruct on ownership thereof is not error. (3) The court did not err in refusing to discharge the jury for remarks of the prosecutor on defendant's failure to testify. This impropriety of the prosecutor was cured by the reprimand of the court and the apology of the offender. No written instruction on this point was asked. State v. Flick, 198 S.W. 1134. (4) It is unnecessary, in the absence of request, to define "feloniously," or to mention the term in the instruction. State v. Helton, 234 Mo. 559. (5) There was no error in overruling appellants' motion for continuance, in the absence of a formal written application therefor. Furthermore, such matters are largely within the discretion of the trial court. Sec. 3997, R.S. 1919; State v. Harrison, 285 S.W. 83. (6) It does not require the testimony of an expert to identify "moonshine," and the witnesses clearly described the operation of the still.

WALKER, J.

Appellants were jointly charged by information in the Circuit Court of Hickory County with manufacturing hootch, moonshine or corn whiskey. They were jointly tried to a jury, found guilty and each was sentenced to two years' imprisonment in the penitentiary.

Two witnesses for the State, named Bennett and Owsley, at about nine o'clock, P.M., August 11, 1926, discovered the appellants in a secluded part of a woodland busily engaged about a fire under what appeared to be a tin can. Impressed from the indications that the appellants were engaged in the process of distilling liquor, Bennett kept watch on them while Owsley went after an officer. He soon returned with a deputy sheriff and a constable. They stealthily approached the appellants and when the latter saw them they fled. Burton succeeded, for the time, in escaping, but England was captured. Upon being apprehended he led the officers to the place from which he and Burton had fled. The latter was subsequently arrested.

When the parties reached the place where they had seen the appellants they found a ten-gallon milk can, with a coil connected therewith which ran through a keg of water. The lower end of the coil was over the mouth of a fruit jar into which a fluid was dripping, as a result of the condensation of the heated product in the can. The fluid in the fruit jar was still warm. Several fruit jars filled with what was shown to be moonshine whiskey were sitting near the still. The identification of the appellants as the persons who were operating the still when the officers and others approached is not controverted.

The appellants assignments of error will be considered in their order.

I. The insufficiency of the testimony to sustain a conviction is urged on the assumption "the mere presence of one at a still is not sufficient to authorize a verdict of guilty." Presence The vice of this contention is that it does not fairly at Still. state the testimony. Not only was the appellants' presence at the still proved but that they were at the time operating the still in the manufacture of moonshine whiskey. This was ample to sustain the verdict.

Another ground of contention as to the lack of evidence is that the whiskey offered in evidence as having been found at the still was not labeled. To give this contention a semblance of materiality it must be construed as an objection to the identification of the liquor as moonshine or as the witnesses described it, "moonshine whiskey." The liquor having thus been identified was offered in evidence. With this proof before them the jury found the liquor of the character designated in the testimony. This was within their province. [State v. Thompson, 289 S.W. (Mo.) 648; State v. Vesper, 289 S.W. (Mo.) 862.] If the liquor had been labeled when found — which would have been a most unusual occurrence — it would have been but a circumstance indicative of its identity. In the presence of other ample proof of identity the absence of any proof of labeling is not material. In determining the character of the liquor under a charge of manufacturing or transporting, hootch, moonshine or corn whiskey, we have held it sufficient to sustain the charge to prove that the liquor was whiskey. [State v. Sandoe, 289 S.W. (Mo.) 890; State v. Brown, 285 S.W. (Mo.) 995.]

The rule announced in the cases above cited finds its support in the meaning we have given "hootch," "moonshine" or "corn whiskey" in State v. Cook (Mo.), 3 S.W. (2d) 365, in which they are defined as "any spirituous liquor illegally distilled or manufactured." There is an absence of merit, therefore,...