State v. Nerini
| Decision Date | 25 May 1928 |
| Docket Number | 28746 |
| Citation | 6 S.W.2d 853,320 Mo. 196 |
| Parties | The State v. Dominico Nerini, Appellant |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court; Hon. Allen W. Walker Special Judge.
Affirmed.
Waldo Edwards for appellant.
(1) The court should have instructed the jury to find the defendant not guilty at the close of the State's evidence, because there was no testimony that connected the defendant in any way with the manufacturing of corn whiskey as charged in the first count of the information, nor with the use and operation of a still in the manufacturing of intoxicating liquor for sale as charged in the second count. All of the evidence that tended in any way to connect this defendant with the crimes charged in the information was that he lived on the premises where the mash and stills were found. One charged with the commission of a crime cannot be convicted upon suspicious circumstances. State v. Elmer, 267 S.W. 934; State v. Smith, 261 S.W. 96; State v Hurnden, 2 S.W.2d 145; State v. Pinto, 312 Mo 99; State v. Hazelhorst, 296 S.W. 139. (2) The search warrant issued by the justice of the peace was illegal and void because the evidence shows that the applicant for the search warrant, who swore to the application, had no personal knowledge of the evidence therein set out and there was none introduced before the justice from which he could find proper cause for the search warrant. State v. Locke, 259 S.W. 116; State v. Smith, 262 S.W. 65; State v. Hall, 265 S.W. 843; State v. Miller, 266 S.W. 1024; State v. Shellmen, 267 S.W. 941; State v. Huckhobe, 269 S.W. 691; State v. Cobb, 273 S.W. 736; State v. Cockrum, 278 S.W. 700; State v. Hallbrook, 279 S.W. 395; State v. Gooch, 285 S.W. 474. (3) The court erred in submitting this case to the jury on two counts in the information which charged the defendant with two distinct felonies. The State should have been required to elect upon which count it would proceed to prosecute the defendant, whether requested by the defendant or not. State v. Preslar, 290 S.W. 42; State v. Burrell, 289 Mo. 678; State v. Guye, 299 Mo. 366; State v. Link, 286 S.W. 12.
North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) The evidence was amply sufficient to support the verdict. Defendant admitted he lived at the location searched, and that the stills were on his premises. The finding of the stills, one of which was in actual operation, is direct evidence upon which the jury might find the guilt of defendant. The testimony of defendant as to an alibi, and that the still belonged to another, constitutes matters of defense which the jury were justified in disregarding. State v. Thogmartin, 270 S.W. 313; State v. Cockrum, 278 S.W. 700; State v. Dailey, 280 S.W. 1044. (2) The rules of law on the joinder of counts in one information may be stated as follows: (a) Where the counts relate to separate transactions, the State must elect before submission to the jury, even though the same offense is involved. State v. Preslar, 290 S.W. 142; State v. Morelock, 291 S.W. 1078; State v. Brown, 296 S.W. 127. (b) Where the counts relate to the same transaction, and charge the same offense, both counts may properly go to the jury under proper instruction that conviction may be on one count only. State v. Brown, 296 S.W. 127. (c) Where the counts relate to the same transaction, although charging different offenses, both counts may properly go to the jury in the absence of a motion to elect, under proper instruction that conviction may be on one count only. State v. Carragin, 210 Mo. 359; State v. Christian, 253 Mo. 382; State v. Whitman, 248 S.W. 937. In this case the two counts grew out of the same transaction as shown by the evidence; defendant made no motion to require the State to elect; the jury was instructed that conviction could be on one count only; therefore the contention of defendant on this point should be ruled against him.
Henwood, C. Higbee and Davis, CC., concur.
An information was filed in the Circuit Court of Macon County, by which appellant was charged with the unlawful manufacture of hootch, moonshine, corn whiskey in the first count, and the unlawful use of a still and other equipment, in the process of manufacturing intoxicating liquor for sale, in the second count. Upon trial, the jury found him guilty as charged in the second count and assessed his punishment at imprisonment in the penitentiary for two years. He was sentenced in accordance with the verdict, and appealed.
Evidence offered by the State shows that, on July 24, 1926, appellant lived near the town of Bevier, in Macon County, and that about three o'clock in the afternoon of that day, the sheriff of the county and one of his deputies went to appellant's home with a search warrant. The officers saw there a man, known as "Shorty Sherman," two women and a little girl, but did not see appellant, at that time. The sheriff told appellant's wife he had a search warrant, and he and his deputy then proceeded to search the premises. No liquor or anything used in connection with the manufacture thereof was found in the house. In outbuildings near the barn and within fifty yards of the house, they found two stills, about fifty barrels of peach mash, eight or ten crates of peaches, about 1500 pounds of sugar, fifty or fifty-five, five-gallon jugs, and thirty-five gallons of liquor. In a summer kitchen, about eighteen feet from the house, they found a concrete vat filled with peach mash, and in a cave, under the summer kitchen and extending out from it, they found ten barrels of peach mash. Both of the stills were full of peach mash and fully equipped with coils cooling apparatus, gas stoves and pressure tanks. One was in operation, with the gas stove lighted, the mash boiling, and the finished product of liquor dripping from the end of the coil into a jar; the other was "all set up" and ready for operation, but the gas stove under it was not lighted. The officers went back to appellant's home about midnight, found him getting ready to go to bed, and arrested him. The stills and a jug of the liquor were admitted in evidence, and the jug of liquor was handed to the jury for their inspection. The sheriff testified that he had smelled the liquor and tasted it, and that it was hootch or moonshine whiskey. Some of the equipments used in connection with the stills were exhibited at the trial and referred to by the sheriff and his deputy in their testimony.
Appellant took the stand in his own behalf and was permitted to testify through an interpreter, because of his inability to speak and understand the English language readily. He said he had been in this country sixteen years and had lived on the premises in question for six years; that he was a farmer, but worked in the mines during the previous year; and that he was helping his neighbor, Tom Rudkin, put up hay on the day of the search, and was away from home from seven o'clock in the morning until seven o'clock in the evening. When his attention was directed to the stills, he said they belonged to "Vaginilii Lorencelli;" and that he had never operated either of the stills, and had never made any whiskey. The following question and answer appears in his cross-examination:
In the absence of Tom Rudkin, the following stipulation was entered into between the State and appellant, and read to the jury:
"It is admitted that if Tom Rudkin were sworn he would testify that he lives in the vicinity of Number 8; that he owns a farm of forty or fifty acres and on the day in question here he was putting up hay and had been putting up hay for several days prior thereto and that this defendant had been working with him in his hay field all day on the day that this search was made and he has been subpoenaed here as a witness."
Mr. Jim Ronchetto, the interpreter, and Mr. Waldo Edwards, counsel for appellant, testified to appellant's previous good reputation for law-abiding citizenship.
I. It is earnestly contended that the trial court erred in submitting this case to the jury on both counts of the information. We do not agree with appellant's learned counsel in this contention. No motion to elect was filed, but the court, on its own motion, instructed the jury that they could not convict the defendant on both counts. That instruction reads as follows:
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