State v. Mageske
| Decision Date | 21 September 1926 |
| Citation | 119 Or. 312,249 P. 364 |
| Parties | STATE v. MAGESKE ET AL. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.
C. K Mageske and others were convicted of possessing mash, wort and wash fit for distillation, and they appeal. Reversed and remanded as to C. K. Mageske. Affirmed as to Daniel Hammer and another.
The defendants, C. K. Mageske, Daniel Hammer, and David Kimmel were indicted by the grand jury of Clackamas county, Or tried, and convicted of the crime of possessing mash, wort, and wash fit for distillation, alleged to have been committed on the 30th day of August, 1923. From a judgment of sentence, the defendants appealed.
W. L. Cooper, of Portland (Grant B. Dimick, of Oregon City, on the brief), for appellants.
L. Stipp, Dist. Atty., of Oregon City, for the State.
The testimony in the case tends to sustain the charge of the indictment and shows facts substantially as follows:
Defendant David Kimmel owned a 60-acre tract of land in Clackamas county, and his son owned a 20-acre tract adjoining to the north. On August 30th the defendants Hammer and Mageske, while riding in an automobile, were stopped on the road from Kimmel's place, near the Baker bridge across the Clackamas river, by Officer Green. Just before they were stopped there was thrown out of their car a sack containing several bottles of moonshine whisky. They were arrested, and immediately afterward the Kimmel place was searched, and a moonshine still, a barrel or two of mash, and a complete distilling outfit were found on the 20-acre tract of land adjoining defendant Kimmel's place, about 50 feet from the line between the two places. The 20-acre tract belonging to the son was looked after and in charge of defendant Kimmel. A part of Kimmel's crop was then on the 20-acre tract.
On the day after the arrest, in the immediate vicinity of the still, nine gallons of moonshine whisky were found. Defendants Hammer and Mageske had endeavored through Kimmel to obtain a lease upon the 20-acre tract, and the document had been drawn for that purpose, but not yet signed, as the son was away in California.
Defendants Hammer and Mageske came to the Kimmel place many times during the month of July, and oftener during the month of August, and on one or more occasions stayed part or all of the night. Just previous to their arrest, and on the same day, the automobile in which they drove back and forth between Portland and the Kimmel place stood in the road in front of the Kimmel house, and one or both of the defendants were on the premises. Hammer and Mageske assisted Kimmel in digging a well or cistern which was some 60 feet from the place where the distilling outfit was located. A pump was in the cistern, or well, and there was lying near it hose sufficient to extend from the pump to the dugout where the still was located. The still and its contents were warm on the evening when the raid was made.
On one occasion defendant Hammer told one of Kimmel's girls not to go down on the 20-acre tract, as there was dynamite there. There was a truck garden within a few feet of this cistern, in which the Kimmel family picked cucumbers and other garden truck about every other day during August, up to and including the time the still was found. The dugout for the still was in view of the cistern or well, and was also in view of the truck patch. The only trail from the dugout was a well-worn trail, recently used, leading past the cistern up through Kimmel's back yard to the road. Mr. Kimmel's grain was thrashed on the 18th of August, and a quantity of straw from the thrashing was piled near the cistern and dugout where the still was located. The dirt from the dugout was in plain view of the garden frequented by Kimmel and his family, and could not have been used without Kimmel's knowledge.
The defendants, by their counsel, objected and excepted to the testimony of members of the grand jury as to the statements of the defendants, given before the grand jury, and claim error by reason of the court having admitted such testimony. Or. L. § 1426, provides in part, that:
"A member of a grand jury may be required by any court to disclose the testimony of a witness examined before such grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before such grand jury by any person, upon a charge against such person for perjury, or upon his trial therefor."
It has been held by this court several times that the testimony of a grand juror was admissible upon the trial in a criminal prosecution. State v. Moran, 15 Or. 262, 274, 14 P. 419; State v. Rathie, 101 Or. 339, 349, 199 P. 169, 200 P. 790; State v. Ayles, 74 Or. 153, 145 P. 19, Ann. Cas. 1916E, 738; State v. O'Donnell, 77 Or. 116. 149 P. 536.
The principle gleaned from the books, that when the demand for promoting justice either in a civil or criminal case outweighs the necessities for keeping the testimony before a grand jury secret, or when the reasons for keeping the testimony private have passed away, the court in its discretion should release the chain of secrecy and admit such evidence in order to prevent the claims of public justice from being unsatisfied. 1 Bishop on Crim. Proceed. § 859; Wharton Crim. Ev. § 510, and note 5 collating the authorities.
At the close of the testimony on the part of the state, counsel for defendants moved for a dismissal for the reason there was not sufficient evidence to sustain the indictment. The testimony was largely circumstantial;...
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