State v. Griffith

• Decision Date: 22 December 1925
• Docket Number: No. 26447.,26447.
• Citation: 279 S.W. 135
• Parties: STATE v. GRIFFITH.
• Court: Missouri Supreme Court

279 S.W. 135

STATE v. GRIFFITH.

No. 26447.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

George Griffith was convicted for a violation of the Prohibition Law, and he appeals. Affirmed.

Munger & Munger and J. W. Farris, all of Bloomfield, and F. M. Walker, of Dexter, for appellant.

Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State.

WALKER, P. J.

Appellant was charged by information in five counts with having violated certain provisions of the statute approved March 28, 1921 (Laws 1921, pp. 413-417), and April 23, 1923 (Laws 1923, pp. 236-247), prohibiting the possession, manufacture, sale, etc., of intoxicating liquors. At the close of the evidence a demurrer was sustained to counts numbered 1 and 3. The jury returned a verdict of guilty upon counts 2, 4, and 5. Count No. 2 charged the felonious sale of intoxicating liquor, commonly called "hootch," "moonshine," "corn whisky," and the verdict fixed the punishment at two years' imprisonment in the penitentiary; count No. 4 charged the felonious possession and use of a still, worm, doubler, worm tubs, fermenting tubs, and barrels in the distillation and manufacture of intoxicating liquor for sale and transportation, and that said articles were fit for use in the process of distilling and manufacturing intoxicating liquors, and the verdict of guilty fixed the punishment at two years in the penitentiary; count No. 5 charged the unlawful possession of intoxicating liquors, and upon a finding of guilty appellant's punishment was assessed at a fine of $200. From these verdicts he has appealed to this court.

One J. B. Allen was jointly indicted with the appellant, but upon a severance the latter was tried alone. The sheriff of Stoddard county, in which the venue is laid, armed with a search warrant issued in the case against the appellant, went to the home of J. B. Allen to execute the same. The sheriff was accompanied by two persons named, Crane and McDougall, the justice of the peace and constable, respectively, of the township in which the warrant was issued and the search made, and they assisted the sheriff in making the search. In a smokehouse on Allen's premises they found two or three gallons of moonshine or corn whisky, a portion of which was offered in evidence and identified. At the time of the search, and before the arrest of the appellant, he stated to the sheriff in the presence of Crane and McDougall that "the liquor was his," and that Allen had nothing to do with it. The sheriff testified: That in a smaller house a short distance in the rear of the smokehouse he and those assisting him in the search found an iron barrel partly full of "swill off of mash." The fluid and the barrel were warm, and the bottom of the barrel, which was blackened by smoke, stood on some strips of iron, leaving a space below where there had recently been a fire. The inside of the building was smoked up. The experience of the witness in locating and examining stills for the manufacture of liquor and what was around them was shown, and he testified that he smelled the swill, and that it was "off of mash." The barrel was the only thing he found that looked like a still. That he also found 3 or 4 gallons of white mule or moonshine in the smokehouse. That his possession of a jug containing a part of this liquor had been uninterrupted from the time it was found until the trial, except a short time when it was in the possession of McDougall, the constable, who assisted him in the search; that it was whisky when he emptied it into the jug, and it was whisky now, and "you wouldn't have to drink much of it to make you drunk." That the common names for this fluid were "white mule," "moonshine," "whisky," and "hootch." That in a little building back of the smokehouse the witness, with the justice and constable, also found some whisky in jugs and fruit jars. That he arrested the appellant and took him and a jug of the liquor to the office of the justice of the peace. That there was a hole in the barrel where a pipe could be inserted to connect it with the worm of a still. That he is familiar with the construction of stills, and has seen them in operation. That the evidence of fire having recently been under the barrel, its warmth as well as that of the swill therein, the character of the latter and the finding of distilled liquor in the same building is, as was brought out on cross-examination by appellant's counsel, the reason of the witness' conclusion that a still for the manufacture of liquor had recently been in operation on the premises he searched. The testimony of Crane, the justice of the peace, and McDougall, the constable, who assisted in the search, is to the same effect as that of the sheriff. One Albert Neal testified for the state that a short time before the raid and the search of the premises as set forth in the foregoing testimony he bought intoxicating liquor from the appellant; that it was white mule, sometimes called whisky; that some people called it moonshine; that he bought it around back of Allen's smokehouse from appellant, and had theretofore bought whisky from the appellant two or three times more than a year before he made the last purchase. The reputation of Neal for truth and veracity was assailed by witnesses for the appellant.

No testimony was offered for the defense except that of the appellant, who denied the sale to Neal, and that of other witnesses to impeach the character of the latter for truth and veracity.

The appellant filed several motions, each of which were overruled, as follows: To quash the jury panel, to quash the information, to quash the search warrant, and to suppress the evidence obtained by the officers in the execution of the search warrant.

I. The appellant complains of the action of the trial court in overruling his motion to quash the panel of jurors. This motion alleged that the panel was composed largely of jurors purposely chosen from members of the Ku Klux Klan, who resided in the immediate vicinity of the home of the defendant, and that there were other jurors on said panel who had made up their minds on the facts and were therefore incompetent.

In a criminal case, and in fact in any other, a juror's membership in any order, not shown to be unlawful in its object and purpose, is not a proper ground of challenge. Such was not shown to be the fact in this case, nor did the examination show that the members of the panel were lacking in any of the qualifications required to be possessed by triers of the facts, viz., open minds and an understanding that, in the performance of their duty, they were to be governed by the evidence and the law as declared by the court, and that they would be so governed in finding their verdict. Section 6632, R. S. 1919; State v. Craft, 299 Mo. loc. cit. 343, 253 S. W. 224, and cases. More is not required. There is no merit in this contention, and we overrule it.

II. It is contended that the information is insufficient. The offenses denounced are of statutory origin. Count No. 2 was drawn under section 21, p. 242, Laws 1923. This statute is as follows:

"If any person shall manufacture, make, brew, distill, sell, give away or transport any `hootch,' `moonshine,' `corn whisky' shall be guilty of a felony, and, upon conviction thereof punished by imprisonment in the state penitentiary for a period of not less than two years, nor more than five years, or by either a fine of $500.00 or imprisonment in the county jail for a term of not less than three months, nor more than twelve months, or both. Provided: That this section shall not apply in the case of corn whisky lawfully manufactured, transported, or sold."

Count No. 4 was drawn under section 2, p. 237, Laws 1923, which is as follows:

"If any person shall use in this state any still, worm, doubler, or other distilling, or brewing equipment or utensils whatsoever, in the process of distilling, brewing, or otherwise manufacturing any intoxicating liquor for sale or transportation for sale contrary to the provisions of this act, he shall be deemed guilty of a felony, and, upon conviction thereof, punished by imprisonment in the state penitentiary for a term of two years, and if any person shall have any such still, worm, doubler, or other equipment, or utensil whatsoever, fit for use in the distilling, brewing or manufacturing, of any intoxicating liquors, now in violation of this act, or any other law of this state, and shall not have used the same in brewing, or the manufacture of any such intoxicating liquor, he shall be deemed guilty of a misdemeanor and, upon conviction thereof, punished by a fine of not less than one hundred dollars, nor more than one thousand dollars, and by imprisonment in the county jail for a term of not less than thirty days nor more than one year."

Count No. 5 was drawn under section 6588, p. 414, Laws 1921, which, soar as concerns the charge here made, is as follows:

"It shall be unlawful for any person, firm, association or corporation, his, its, or their agents or employees to manufacture, sell, possess, give away or transport intoxicating liquors within, import the same into, or export the same from the state of Missouri, except as hereinafter provided. * * * "

The formal sufficiency of these counts is not challenged. Each is of statutory origin, and the requirement of the rule of construction is met in that each sets forth the constituent elements of the crime charged. State v. Brown, 304 Mo. 78, 232 S. W. 710. In the setting forth of such elements within the meaning of the rule it is, of course, necessary that the allegations made should be of such a nature as to apprise the accused of the nature of the crime with which he is charged, to the end that he may, under the right granted to him by the Constitution (Const. Mo. art. 2, § 22), be enabled to prepare his defense. That the...