State v. Gensler
| Decision Date | 03 June 1927 |
| Docket Number | 27856 |
| Citation | 295 S.W. 1081 |
| Parties | STATE v. GENSLER |
| Court | Missouri Supreme Court |
Claude Wilkerson, of Sedalia, for appellant.
North T. Gentry, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.
The record establishes that on May 18, 1925, the prosecuting attorney of Cooper county filed a verified information in the circuit court charging defendant with making, on April 23 1925, corn whisky. On defendant's application the venue was changed to Howard county. There tried before the court and a jury, the verdict returned found defendant guilty, and assessed his punishment at two years' imprisonment in the penitentiary. Judgment and sentence accordingly, from which defendant appealed.
The record develops the application for a search warrant, the issuance thereof, and its execution by the sheriff, relative to a certain 20 acres occupied by defendant. A search being made, a still, coil, fourteen barrels of mash and corn whisky were found in a copse on the described premises. The still was in operation, distilling corn whisky. An officer making the search discovered defendant four or five feet from the still chopping wood similar to the wood burning under the still. Upon observing the officer, defendant started to run jumped across a depression, and ascended a bluff disappearing in the woods and undergrowth. The officer holloed to him to stop, and, upon his refusal, fired three shots aside when defendant was 50 or 60 feet away. The site was well screened by a thicket and brush. Defendant was clearly identified by the officer who observed him near the still. After the firing of the shots, the sheriff observed defendant come from a gap into view, about 200 yards distant, and then hurriedly duck into the woods and brush. Defendant admitted that the still, coil, fourteen barrels of mash and corn whisky were found on the described premises, but denied his connection with it. As no point is made with respect to the validity of the search warrant in the motion for a new trial, we omit it from further mention.
I. The motion for a new trial comprises nine assignments of error. They are as follows:
'(1) Because the verdict was against the law.
'(2) Because the verdict was against the evidence.
'(3) Because the verdict was against the weight of the evidence.
'(4) Because the court erred in admitting incompetent and prejudicial evidence over the objections and exceptions of defendant.
'(5) Because the court erred in excluding competent and material evidence offered by defendant.
'(6) Because the court erred in giving instructions Nos. 1, 2, 3, 4, and 5.
'(7) Because the court erred in refusing peremptory instructions offered by the defendant at the close of the state's evidence, and refused to give peremptory instruction offered by the defendant at the close of all the evidence.
'(8) Because the court failed to properly instruct on all of the law and the evidence as requested by defendant.
'(9) Because prejudicial remarks were made by counsel for the state as shown by the attached exhibit.'
It is evident that every assignment of error found in the motion for a new trial, except assignments 1, 2, 7, and 9, under the interpretation given the statute in State v. Standifer (Mo. Sup.) 289 S.W. 856, fails to meet the requirements of section 4079, Laws 1925, p. 198, commanding that assignments of error be set forth in the motion specifically, in detail, and with particularity.
However, while the question of the weight of the evidence is not for our consideration, assignment three is noted in the motion with sufficient particularity to permit its consideration by the trial court.
II. Assignments of error 1 and 2 are tantamount in substance and effect to assignment 7. They bring up for our review the question of the want of any substantive evidence to sustain the judgment. The circumstances, however, develop the chain, link by link; thereby constituting the chain substantive evidence of defendant's guilt, and rendering it a cause submissible to the jury. The circumstances demonstrate a still in operation in a secluded spot, a wood fire burning under a stove, mash cooking, the coil running through a barrel of water, with a vessel to catch the fluid at the end of the coil, and two ten-gallon kegs and several ten-gallon jars of whisky. Within four or five feet of the still defendant was discovered splitting wood similar in kind to the wood burning under the still. Apprised of the officer's approach, defendant fled, hoping, we may assume, to remain unidentified. The probative force of the foregoing evidence, the culminating feature of which was defendant's flight, pointed to his guilt. The substantive evidence before the court and jury constituted it a submissible case, and it was therefore the province of the jury to pass upon the facts under the instructions of the court. The rule is tersely stated in State v. Cooley (Mo. Sup.) 289 S.W. 807:
'We have repeatedly held that to authorize this court to set aside a verdict as not supported by...
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