State v. Lee

• Court: Supreme Court of Oregon
• Writing for the Court: [120 Or. 648] BEAN, J. (after stating the facts as above).
• Citation: 253 P. 533,120 Or. 643
• Parties: STATE v. LEE.
• Decision Date: 23 February 1927

253 P. 533

120 Or. 643

STATE
v.
LEE.

Supreme Court of Oregon

February 23, 1927

Department 2.

Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.

Leslie Lee was convicted of possessing mash, wort, and wash fit for distillation or for the manufacture of intoxicating liquors, and he appeals. Affirmed.

The defendant was indicted, tried, and convicted of the crime of having in his possession mash, wort, and wash fit for distillation, or for the manufacture of intoxicating liquors. From a judgment of sentence defendant appeals.

A search warrant was secured by the sheriff of Washington county upon affidavit, to authorize the search of the premises known as the Elizabeth Lee place, occupied by James Lee. The premises consisted of several acres of land. Pursuant to the search warrant the sheriff and his deputies proceeded to search the house and outbuildings of James Lee, where they found a quantity of moonshine and mash. After the search of the James Lee place, they went into the barnyards, where the sheriff smelled mash. The sheriff proceeded along the automobile tracks leading toward the barn of Leslie Lee, the defendant, about 850 feet from the house of James Lee; the barn of Leslie Lee being approximately 350 feet from the barn on the premises of James Lee. The nearer he approached the Leslie Lee premises the stronger and more pronounced the odor became. Arriving at the barn of Leslie Lee, the odor of mash was extremely strong and pronounced. The barn was locked, and, upon going to the residence occupied by Leslie Lee, no one was found at home. Returning and passing the Leslie Lee hogpen, the sheriff discovered mash thrown into the hogpen. Retracing his steps from there to the barn, he again found the fumes of mash distinctly noticeable. The sheriff entered the barn by displacing the board which covered a manure hole and then unfastened the barn door from the inside, and his assistants entered this structure, or so-called barn. In a pen which was entirely inclosed and lined with heavy paper a complete still was set up ready for operation with a capacity of 100 gallons, including the pressure burners, and a huge vat filled with water for cooling and condensing purposes. In the upper story of the building, which had once been a hayloft, was found a tent, put up and inclosed. Inside of this tent were six vats, each of the capacity of 100 gallons, and containing corn mash. In this tent was a coal oil stove with fire burning for the purpose of keeping the mash at the proper temperature for fermentation purposes. Some of the mash was still going through the process of fermentation. A portion of it was ready to run through the distillery. All of the mash was fit for distillation. There was found upon the premises a quantity of finished moonshine. There was also found some old mash and fixtures, appliances, and apparatus used for the purpose of making and selling moonshine.

One of the deputies was left to watch for the defendant and arrest him upon his return. This deputy arrested defendant on the road to his home, and in his vehicle at the time were supplies to be used in making moonshine. The defendant admitted to the officers that the still that they had found in his barn was his still; that the mash and moonshine found were his; and also admitted that all of the mash and moonshine found on the James Lee premises was his. He admitted that all of the moonshine apparatus and appliances found by the sheriff on the premises occupied by him was his, and that the building where they were found was upon the premises occupied and controlled by him under a lease from one Jennie Lee. The premises occupied by the defendant consisted of about 1 1/2 acres of ground.

After the search and before the trial, to wit, on November 24, 1925, the defendant filed in the circuit court a petition praying that all of the evidence in regard to matters and things obtained with respect to the search and seizure be suppressed for the reason that the sheriff did not have a search warrant for the search of his premises and that said search was in violation of section 9, art. 1, of the Constitution of the state of Oregon. After a hearing and the taking of the testimony upon the application, the circuit court denied the same. [253 P. 534]

R. F. Peters, of Hillsboro (Hare, McAlear & Peters, of Hillsboro, on the brief), for appellant.

E. B. Tongue, of...