State v. Moon

• Decision Date: 03 May 1926
• Citation: 283 S.W. 468,221 Mo.App. 592
• Parties: STATE OF MISSOURI, RESPONDENT, v. E. E. MOON AND W. A. PARKER, DEFENDANTS, W. A. PARKER, APPELLANT.
• Court: Kansas Court of Appeals

283 S.W. 468

221 Mo.App. 592

STATE OF MISSOURI, RESPONDENT, v. E. E. MOON AND W. A. PARKER, DEFENDANTS,

W. A. PARKER, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

May 3, 1926

Appeal from the Circuit Court of Buchanan County.--Hon. W. H. Utz Judge.

AFFIRMED.

Judgment affirmed.

DuVal Smith, Prosecuting Attorney, and C. W. Meyer for respondent.

Bart M Lockwood for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.--

Defendant Parker together with one Moon were jointly tried and convicted of having a still fit for use in the distilling of intoxicating liquor, contrary to section 2 of the Act of April 3, 1923, concerning intoxicating liquors. [See Laws of 1923, p. 237.] The punishment assessed by the verdict of the jury was a fine of $ 100 and thirty days in the county jail. Defendant Parker has appealed.

The facts show that on March 10, 1924, some officers of Buchanan county, armed with a search warrant, raided a place just south of the city limits of St. Joseph. When they arrived at said place they found the defendants working on a Ford delivery truck in a part of a structure that had been previously used as a slaughter house. This was an L shaped building, the longer part running east and west. The east end of the building was a room which ran into a cave under a hill and was used as a cooler. This cooler room was closed and was locked with a padlock. At the west end of this building and under the same roof was a projecting L to the south which was partitioned off from the rest of the building. The south front of this L had been torn out and at the time of the raid it was being used as a garage and work place for repairing automobiles. The premises consisted of about eight acres. There was a house on the premises, built on a hillside about seventy-five or eighty feet from the slaughter house and near and east of a public road. The first floor of this house consisted of one room with a concrete floor; the second floor was arranged for living quarters. On the west side of the house there was a door leading to the first floor. There was a stairway leading from the lower to the upper floor, which floor was entered through a trap door similar to an old fashioned cellar door. On the east side, next to the hill, was a short stairway on the outside, leading to the second floor; at the bottom of this stairway was a kennel in which was chained a vicious bull dog.

Moon testified that the officers approached and asked who was the proprietor to whom they could read a search warrant. Moon did not say anything to them but Parker said, "I guess I will do, go ahead and read it." The search warrant was then read. The State's evidence tended to show that after the warrant was read, defendants were placed under arrest. Defendants were asked for a key to the padlock but said that they had none, whereupon the officers procured a pick and started to break the lock. The State's evidence shows that while the officers' attention was thus momentarily directed upon this work, the defendants ran into the house. Two of the officers ran after them; one of these officers testified that, "I . . . ran up to the door and started to go up the back stairs where this dog was and I backed off. I backed off and something was thrown out this back door, throwing off an awful odor of liquor." One officer had gone into the lower floor and found the door leading from the lower to the upper floor closed. The officers called to the defendants to come down. Finally Parker opened this door and come down stairs, having in his hand a large butcher knife which he had been using in his work on the car. Afterwards Moon came down. After the officers finished searching the room that had been locked, they went to the residence and found upstairs a five-gallon jug, a one-gallon jug, several bottles that had had liquor in them, "Well, there was a little bit of liquor in each one of them yet, they never had been rinsed out."

After the padlock was broken, the officers entered the cooler room and found no one in it. However, they found two stills, not far apart, with the usual equipment, each on a lighted gasoline stove, in full operation. They also found five barrels containing a mixture of corn and rye mash. Before the cooler room was entered, there was an odor from the stills that could be plainly detected at the place where the defendants were working on the car, which was only fifteen feet from the stills. After the stills were discovered, the officers found a sack containing a five-gallon jug of corn whisky in the dog kennel, one officer reached in and seized the liquor while the dog was being held.

The latter part of February, 1924 (the exact date not being shown), the prosecuting attorney and an assistant with some police officers went to the house in question a little before midnight. At that time they found therein Moon and his wife and children. Moon was upstairs in bed, with a sore leg, claiming that shortly before he had gone to quiet the dog and had fallen down the stairway; Moon stated that the dog was his and that he was the head of the house and that he was in charge of the premises. There was a dance going on downstairs in which several people were taking part, and a piano player was in operation. Soon defendant Parker came in. Parker first told one of the officers that he owned the place and that he had rented it or sub-let it to defendant Moon. Afterwards Parker said that the property belonged to one Mannschreck. To the prosecuting attorney Parker said he had leased the place from a Mr. Mannschreck. The evidence further shows that on March 20, 1924, Parker pleaded guilty to the crime of receiving stolen goods and was fined $ 25; he also pleaded guilty at another time to receiving stolen property belonging to the Burlington railroad.

The evidence of the defendants tended to show that Parker and one Kerns were running a retail store in the City of St. Joseph and had used the outhouse in question as a slaughter house; that they had leased the premises from one Mannschreck but in July prior to the arrest of the defendant they rented to Moon an acre of ground and the house. About February 1, 1924, Parker and Kerns quit using the outbuildings and rented them to Moon who thereafter tore out the end of the building and started a repair shop there. Moon testified that he thereafter rented the cooling room to a stranger by the name of "Charley" but whose last name he did not learn, for a place for Charley's tools and that Charley put the padlock on the door and was the only person the witnesses knew who had access to the room. On the morning of the arrest Parker telephoned Moon about having him fix the brake bands on the former's Ford delivery truck. Parker had been on the place about twenty or thirty minutes before the officers arrived, he was doing no work on the car but was waiting until Moon finished with it. Both of the defendants denied any knowledge of the existence of the stills or liquor upon the premises. Parker testified that after renting the premises to Moon, he did not go there except to collect the rent but that about 11:30 of the night that the officers were first there someone called him over the phone and said that "they was raiding the house down there, and they was going to throw Moon out, and that Moon had got hurt, and that they would like for me to come down right away." So he went to the place and found the officers there.

The information upon which defendants were tried, charged that the defendants ". . . on or about the 10th day of March, 1924, . . . did then and there feloniously and unlawfully use a still, worm, doubler and mash tubs in the process of distilling, making and manufacturing intoxicating liquor for sale and transportation for sale," etc.

It is insisted that the court erred in giving the State's instruction No. 4 telling the jury to the effect that they could convict defendants either of using a still or having a still in their possession. The defendant Parker claims that he could not have been convicted of having a still upon an allegation of use of a still as charged in the information. The statute under which defendants were prosecuted reads 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." (Italics ours.) [Laws of 1923, p. 237.]

"It was a rule at common law, and is now the general practice that when an indictment charges an offense which includes within it another less offense, or one of a lower degree, the defendant, though acquitted of the higher offense, may be convicted of the less. The statement of the rule indicates that it always implies that the lesser offense is included in the higher crime with which the accused is specifically charged, and the...