State v. Morris

• Decision Date: 22 December 1925
• Docket Number: No. 26632.,26632.
• Citation: 279 S.W. 141
• Parties: STATE v. MORRIS.
• Court: Missouri Supreme Court

279 S.W. 141

STATE v. MORRIS.

No. 26632.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Albert Morris was convicted for unlawfully and feloniously making intoxicating liquor, commonly called hootch, moonshine, corn whisky, and he appeals. Affirmed.

Munger & Munger and J. W. Farris, all of Bloomfield, for appellant.

Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The first count of the information charges in substance that the appellant, at Stoddard county, on or about the _______ day of December, 1923, did then and there unlawfully and feloniously make intoxicating liquor, commonly called hootch, moonshine, corn whisky. There were three counts in the information, but the case was submitted upon the first count, and the defendant was found guilty thereon, and his punishment assessed by the verdict of the jury at imprisonment in the penitentiary for a term of two years. He was sentenced accordingly and appealed. The statement prepared by the Attorney General fairly states the facts as follows:

"The sheriff, deputy sheriff, and two other officers in Stoddard county were making a search for illicit whisky stills on the date alleged in the information, to wit, in December, 1923. They went out in the country in Stoddard county, Mo., in the neighborhood of what is called in the evidence `Cline's Island.' They located a one-room shack in the woods, and on the road which led from the village called Darnell to Cline's Island. A man by the name of Finley had, at one time, been in possession of this one-room shack. About half a quarter from this shack, out in an open place in the woods, the officers found a whisky still, together with about 15 barrels partially filled with mash, 300 pounds of sugar, and 3 or 4 bushels of meal. The still was complete, with the exception of the worm, and was all set up for operation, with the fire under the still proper. No one was at the still at the time the officers found it, and, after watching the still for a time, it was decided that Officers Burns and McDougal should remain and watch this particular still while the other officers went in search of other stills.

"About 15 minutes before 2 o'clock a. m. defendant in this case came from the one-room shack house down the path leading to this still. He had a lantern with him, and when he got down to the still he looked over it, and then Went and looked over the mash in the barrels, and then looked at the meal and sugar. Whereupon the officers seized and arrested him. They held the defendant at the still and did not allow him to return to the house. A few minutes later some one at the house called for the defendant, and the defendant replied, `They have got me,' or, `They have arrested me.'

"Burns, McDougal, and the defendant remained at the still until daylight, when the other officers returned, and all of the officers then took defendant up to the house and found the doors locked. Whereupon the officers broke down the doors and went into the house. Inside the house the officers found the missing worm, and testified that this worm would have fitted into the still found out in the woods. On the table in the house was a portion of a glass of whisky, which whisky defendant drank, remarking at the time, `This is good whisky.' In the house the officers found more sugar and more meal. The officers testified that the still had been in use in the manufacture of moonshine, and that they smelled the odor of whisky around the still, and detected the well known odor of moonshine whisky in the still. No moonshine whisky was found except that found in the house.

"It was shown in the evidence for the state that the defendant was seen about 9:30 o'clock on the morning previous to his arrest about two miles from the place of his arrest going in that direction in company with one Haynes; that the defendant was in his wagon, and that he had some meal in the wagon and some sacks, and was on what was called the `woods road,' which inevitably led him by the place where he was arrested. The evidence for the state further shows that witness Hammonds and witness Harper had both seen defendant's team and wagon at the one-room shack house several days prior to defendant's arrest, at which time this team was unhitched from the wagon.

"Defendant admitted that he was at the house a few weeks before his arrest, at which time he claimed to have moved Finley's belongings to this house. Defendant also admitted that he brought two bushels of meal to the Finley house the night before his arrest, and that he also had a sack of corn in his wagon. He claims, however, that he and his witness, Haynes, went out to the Finley place the afternoon before his arrest for the purpose of looking over some timber land with a view to leasing it and clearing it of timber; that he looked over the adjoining land the afternoon before his arrest and discovered this still which was seized by the state; that he had no interest in the still whatever.

"He claims, further, that, after arriving at Finley's house, Finley asked to borrow his team and wagon to take his folks to his mother's, a distance of some three miles away, promising to return that night; that he gave Finley permission to use his team and wagon; that he and Haynes ate supper at the house, and, after talking a while, went to bed; that they had no time piece and wanted to get up early in order to gather corn the next day; that defendant got up early in the morning, thinking it was nearly light, and that while Haynes was preparing to get breakfast Haynes suggested that defendant go down to the still and get some of the beer to make bread; that defendant lighted his lantern and went down to the still to get some beer to make bread when he was arrested by the officers.

"He further testified that he had no interest, direct or indirect, in the still, that he never saw it until the day before, that he had never stayed all night at the Finley shack before, and that he brought the meal to Finley's house at the request of Finley's mother, who purchased the meal at Darnell and asked defendant to deliver it to her son; he further claimed the sack of corn in his wagon was to be used by him to feed his team, and also to feed a mare he had on the range; he claimed the barrel in his wagon belonged to another man, and was delivered to this other man before he arrived at Finley's."

Other features of the evidence will be referred to in the opinion.

1. The first assignment of error in the motion for new trial is that the court erred in overruling defendant's motion to suppress the evidence obtained by the sheriff by means of breaking into and searching the residence of John Finley. It is not averred that the sheriff committed a trespass upon or unlawfully searched the defendant's premises; it is averred that he broke into and searched Finley's house.

The language of our Bill of Rights is:

"That the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures."

In State v. Owens, 302 Mo. 348, 359, 259 S. W. 100, 102, 32 A. L. R. 383, Judge White said:

"The rule is general that private papers, or property possessing evidential value only, obtained by government officers by means of illegal search, are not admissible in evidence against the person affected, whose premises were searched."

The sheriff had arrested the defendant, and had direct proof, as he claimed, that the defendant was found in the commission of a felony; he gravely suspected that Haynes was jointly concerned in the act. He went to the house to arrest Haynes, but Haynes refused to open the door, whereupon the sheriff broke it open. There was liquor in a glass on the dining table, which the defendant drank and said was good whisky. There was evidence that the defendant was drunk when he was arrested. Within plain view was a worm which the sheriff testified would fit into the still. Without discussing the legality or illegality of the sheriff's act in breaking into the house, it is plain that the defendant's person, papers, home, or effects were not searched, and he has no reason to complain of the search of another's house. The motion to suppress the evidence was properly overruled.

2. The second ground is that the court erred in overruling the demurrer to the evidence. This is the serious question in the case. The defendant testified that, in company with Haynes, he drove from Darnell on the day in question to Finley's place, a distance of two miles or more, taking with him corn meal and a sack of corn; that Finley took the team and drove to his mother's home, a short distance from Darnell; that defendant and Haynes were at or about Finley's place the remainder of the day, got supper, and, instead of returning to their homes as they might naturally have been expected to do, went to bed in Finley's house. However, Walter Roscoe, the sheriff, testified that Finley had lived in the house, but had moved away before the defendant was arrested.

In the...