State v. Mischler

• Decision Date: 03 January 1927
• Docket Number: No. 15795.,15795.
• Citation: 289 S.W. 669
• Parties: STATE v. MISCHLER.
• Court: Missouri Court of Appeals

289 S.W. 669

STATE v. MISCHLER.

No. 15795.

Kansas City Court of Appeals. Missouri.

January 3, 1927.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

John Mischler, Jr., was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed and remanded.

W. V. Draffen, of Boonville, for appellant.

John H. Windsor, Pros. Atty., of Boonville, for the State.

ARNOLD, J.

This is an appeal from a verdict of guilty and penalty of $200 fine imposed upon defendant for alleged unlawful possession of intoxicating liquor.

It appears that on September 8, 1924, the prosecuting attorney of Cooper county, Mo., filed his affidavit before a justice of the peace of said county, charging that intoxicating liquor was being unlawfully manufactured and contained, possessed, transported, and kept in a certain Ford runabout then in a ditch in the public highway, near a farm known as the Joe Combs farm, on the lower Overton road, about four miles east of Boonville in Cooper county, stating said car was in possession of defendant John Mischler, Jr., and others, and asking that a search warrant issue authorizing a search of said motor vehicle and the seizure of all intoxicating liquor found therein and the arrest of any person or persons found using or in possession of any such intoxicating liquors.

The warrant was issued accordingly on September 8, 1924, and placed in the hands of the sheriff of Cooper county for execution and return. The sheriff's return thereon is as follows:

"This is to certify that I executed the within writ by reading the same to the within named defendants and making a careful and diligent search of the said motor vehicle, finding therein an unlawful quantity of liquor, whereupon I arrested the said defendants and brought them before Justice C. E. Gross, for examination. Charles G. Hull, Sheriff of Cooper County, Mo."

It appears that on the same day the sheriff made an affidavit asking for a warrant against James L. Windsor and John Mischler, Jr., charging possession by them of "hootch, moonshine, and corn whisky" and thereupon and in due time, an information was issued by the prosecuting attorney of Cooper county and filed before C. E. Gross, justice of the peace, charging that one Lawrence Windsor and John Mischler, Jr., did knowingly, willfully, wrongfully, and unlawfully have in their possession, certain intoxicating liquor, to wit, one pint of hootch, moonshine, and corn whisky, being potable and capable of being used as a beverage. The defendants were tried before said justice of the peace upon said information, and a verdict of guilty was found against each. Thereafter each defendant appealed from said verdict and judgment thereon to the circuit court of Cooper county. During the May term of said court each of said defendants filed his motion to quash the search warrant and to suppress the evidence obtained thereunder, and asked that:

"The state of Missouri be not allowed to disclose or put in evidence against these defendants, or any of them, any information or knowledge, relative to the offense charged, obtained by said sheriff, his deputy or other persons, by virtue of or while executing the said search warrant, or in consequence of and connected with the same."

The said motion was overruled by the court on May 18, 1925, but thereafter, and on May 27, 1925, the order overruling the motion was set aside and the motion sustained. Upon the application of defendants, a change of venue was taken to the circuit court of Howard county.

On November 18, 1925, the prosecuting attorney of Cooper county filed his motion for a rehearing on the motion to quash the search warrant and suppress the evidence theretofore sustained by the judge of the circuit court of Cooper county. The court overruled the motion to reconsider, a severance was granted the defendants, and the case of John Mischler, Jr., went to trial on November 19, 1925. At the close of the state's case, and again at the close of all the evidence, defendant asked, and the court refused, an instruction in the nature of a demurrer. There was a verdict of guilty, as follows:

"We, the jury, find the defendant guilty as charged and assess the punishment at a fine of $1 and costs."

A motion for a new trial was overruled, and the court sentenced defendant to pay a fine of $200, being the minimum authorized by law for the offense. Defendant appealed.

The evidence on behalf of the state consisted of the testimony of C. G. Hull, former sheriff of Cooper county, John T. Sites, special deputy sheriff, Percy B. McMahan, sheriff of Cooper county, W. E. Yarnell, Joe Hickman, and J. Bauer Hickman, the last three named witnesses being farmers living near the scene of the arrest.

The testimony of Hull and Sites tends to show that they were together on the occasion of the arrest of defendant; that they went to the home of Wm. E. Yarnell, and there found defendant John Mischler, Jr., in a Ford automobile in the public highway in front of Yarnell's house. Hull testified that, under the authority of the search warrant heretofore mentioned, he searched the automobile named therein, but found nothing; that he did find a jug upon an embankment some nine feet away from said car. He identified the jug in question, as did also John Sites. Percy D. McMahan testified that the jug in question contained corn whisky. The other witnesses, as did those just named, testified that defendant was in a drunken stupor, that he was sitting in the Ford car, and that it was necessary to lift him therefrom to place him in the sheriff's conveyance. Witness Yarnell testified that about the middle of the night defendant and Windsor left their car, came upon his porch, knocked on the door, and then, with the jug in their possession, sat upon the porch talking, and defendant singing, "It aint goin' to rain no more," and that the witness had recognized defendant as one of the two men.

Defendant objected to the introduction in evidence of the jug and its contents, and to all the testimony of witnesses Hull and Sites pertaining...