State v. James Watson

• Decision Date: 06 October 1926
• Citation: 134 A. 585,99 Vt. 473
• Parties: STATE v. JAMES WATSON
• Court: Vermont Supreme Court

134 A. 585

99 Vt. 473

STATE v. JAMES WATSON

Supreme Court of Vermont

October 6, 1926

May Term, 1926;

INFORMATION charging respondent with unlawfully manufacturing and possessing intoxicating liquor. Plea, not guilty, Trial by jury at June Term, 1925, Orange County, Moulton, J presiding. Verdict of guilty, and judgment thereon. The respondent excepted. The opinion states the case.

Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.

Shields & Conant for the respondent.

H W. Hastings, State's Attorney, for the State.

Present: POWERS, SLACK, and FISH, JJ., and GRAHAM, Supr. J.

OPINION

GRAHAM

The respondent is charged by information with unlawfully manufacturing and possessing intoxicating liquor.

On June 17, 1925, the officers searched the respondent's premises and found in a closet upstairs and adjoining the room in which the respondent's children slept, a quantity of corn and liquid in a barrel and two other containers; the liquid was at the time in an active state of fermentation. The containers and contents were seized and received in evidence at the trial. Also from one hundred fifty to two hundred pounds of used corn were found spread out on the barn floor as if to dry.

On July 3, 1925, the officers made a further search of the respondent's premises and found in the woods on land adjoining the respondent's premises, and concealed under some cut bushes, a copper boiler, which the State claimed was a still, or an appliance adapted for distilling intoxicating liquor. It was offered and received in evidence in connection with the testimony of the officer who conducted the search and made the seizure, subject to the exception of the respondent that it had not been connected with him in any way. It was then offered and received for the purpose of establishing the fact of the respondent's guilt. No exception was taken to this last ruling. However, we treat the question as though exceptions were saved to all rulings thereon. This article was made of copper, circular in shape; it had two compartments, the inner compartment being coneshaped, and had a loose fitting copper cover from which protruded, through an opening in the outer compartment, a copper tube several inches long and about one-fourth inch in diameter. Its shape, size, and construction would indicate its adaptability for condensing or distilling purposes. The evidence showed these facts: That the place where it was found by the officers was back of the respondent's house and about forty-five rods therefrom; that it was from twenty to twenty-five feet from the boundary of the respondent's land; that there was a path leading from the respondent's house to and a short distance into the woods and to the place where the article was found concealed; that the respondent's children played near where the path enters the woods; that empty cans and other material had been dumped at the edge of the woods and near the boundary of the respondent's land; and that the respondent's house was the nearest house to the place where the appliance was found. Moreover, it appeared that at the same search on July 3, the officers found in a cupboard in the cellar of the respondent's house, a rubber hose several feet long and one-fourth inch in diameter, which had a copper attachment at one end which fitted into the copper tube protruding from the side of the copper boiler, and had the appearance of being a part of the same mechanism. This rubber tube was already in evidence without objection. Also a quantity of empty bottles was found in a back room in the respondent's house. These circumstances were sufficient to prima facie connect the respondent with the exhibit, and make it a jury question whether the appliance was the respondent's or under his control, and might be used in the manufacture of intoxicating liquor. State v. Suiter, 78 Vt. 391, 63 A. 182; State v. Ryder, 80 Vt. 422, 68 A. 652.

The State's attorney in his opening statement to the jury stated in reference to the search of July 3, that "there was then found in the woods under a brush heap adjoining, or close to the respondent's premises, a still which will be produced here." No objection was made by respondent to this statement. During the direct examination of the officer, who conducted the search, the following appeared: "Q. What did you find, if anything? A. Found a still. Q. Have you that still here? A. Yes sir. Q. Will you produce it? (Apparatus produced.) Q. Where did you find this still?" Counsel for respondent then stated: "I think that is a characterization, I don't think they can characterize whatever it was. He can show us what he found, it is for the jury to say what it was." The court told the State's attorney that he might ask the witness "where he found this piece of mechanism without characterizing it," and the examination proceeded without any exception being taken. Later during the same examination in answer to questions by the court the witness stated that he did not know what the article was; to the same effect were witness' answers on cross-examination. But after this appeared, counsel for respondent continued his examination of the witness consisting of thirty-four questions and answers, and at the close of the cross-examination, moved that the answer be struck out wherein the witness said he found a still in the woods. The court ruled that it might stand, and the respondent was allowed such exception as he was entitled to. It was not error for the court to allow this answer to stand. Rollins v. Chalmers, 51 Vt. 592. The respondent had waived his right, if any, to have this evidence stricken out. McClary v. Hubbard, 97 Vt. 222, 244, 122 A. 469; Edmunds Brothers v. Smith et al., 95 Vt. 396, 401, 115 A. 187; In re Estate of Clogston, 93 Vt. 46, 55, 106 A. 594.

At the close of the State's evidence and again at the close of all the evidence, the respondent moved for a directed verdict in his favor. The motion is based generally upon the insufficiency of the evidence to warrant submitting the question of respondent's guilt to the jury, except one ground, which is: "That there is no evidence, or at most insufficient evidence, to go to the jury on the question of whether or not this liquid contained more than one-half of one per cent." This is the only ground of the motion which requires discussion.

The respondent's defense was that the liquid found by the officers at the search of June 17, as above stated, was for the purpose of making vinegar and not for beverage purposes that the manufacture of this liquid into vinegar was innocent and lawful. See Sec. 6 of No. 204 of the Acts of 1921. This was the theory upon which the case was tried and...