State v. Parks

• Decision Date: 11 February 1929
• Docket Number: No. 16284.,16284.
• Citation: 13 S.W.2d 1107
• Parties: STATE v. PARKS et al.
• Court: Missouri Court of Appeals

13 S.W.2d 1107

STATE v. PARKS et al.

No. 16284.

Kansas City Court of Appeals. Missouri.

February 11, 1929.

Appeal from Circuit Court, Lafayette County; Robert M. Reynolds, Judge.

"Not to be officially published."

Clifton Parks and another were charged by information with, and the named defendant was convicted of, unlawfully possessing intoxicating liquors, and he appeals. Reversed, and defendant named discharged.

Lyons & Ristine, of Lexington, for appellant.

Ike Skelton, of Lexington, for the State.

BARNETT, C.

Clifton Parks and Albert Parks were charged by information with the unlawful possession of intoxicating liquors, to wit: "One pint, more or less, of hootch, moonshine, corn whiskey."

The cause was tried in the circuit court of Lafayette county. The jury found Clifton Parks guilty, but disagreed as to Albert Parks. The state entered a nolle prosequi as to Albert Parks. The defendant, Clifton Parks, was duly sentenced and has appealed.

The evidence for the state showed that a building in Lafayette county was owned by Henry N. Proffitt, and was rented to Albert Parks, a brother of appellant. The room on the first floor was equipped for the sale of soft drinks and sandwiches. It contained a counter, ice boxes, and a near beer faucet with a sink underneath. Under authority of a search warrant, officers went to the building on January 22, 1927, for the purpose of executing the warrant. The place of business was not open when the officers arrived. The officers demanded admission, and after a few minutes delay Clifton Parks, the appellant, pulled a string from his position behind the counter, and thus lifted a latch on the outside door, permitting the officers to enter. Just as the officers entered Clifton Parks seized a pint fruit jar and "soused" it in a bucket of water, rinsed it a few times, and then replaced it on the counter. There is no evidence that the bucket of water was emptied into the sink after Clifton Parks had rinsed the fruit jar.

The record before us does not indicate whether Albert Parks, the proprietor, was present or absent at the time the search warrant was executed. There is evidence that Clifton Parks was behind the counter, that he opened the door, and that he rinsed the fruit jar. There are many references by the witnesses to "Mr. Parks." Both brothers were tried under one information, without any severance. Even though we were justified in assuming that the references to "Mr. Parks" always referred to Clifton Parks (which is not decided), yet, the fact remains that there is no evidence in the record that Albert Parks was either present or absent.

There is no positive showing as to what relation appellant, Clifton Parks, bore to the soft drink establishment, other than that he was present at the time when the officers arrived; that he was behind the counter; that he unlatched the door; and that he rinsed the fruit jar in a bucket of water.

The officers found no intoxicating liquor in the room. Near beer was found, but was not examined, and no examination was made of the water found in the bucket where the fruit jar had been rinsed. The officers then went into a cellar below the first floor of the premises through an outside door, there being no direct entrance to the cellar through the soft drink room. The cellar appeared not to have been used for any purpose other than as a dumping place for refuse and rubbish including old bottles, some broken and others not broken. One end of the cellar contained a large amount of dirt. The officers saw something dripping from a pipe which led down into the cellar. Below this pipe there was a small puddle of liquid. They did not catch any of the drippings from the pipe, but some of the liquid was scooped off of the dirt floor beneath the pipe. This liquid was produced at the trial. The officers testified that it smelled like "hootch," and that it still smelled like "hootch" at the trial. One officer testified that what he called "hootch" was illicitly manufactured whisky or "moonshine," but the officers testified that they could not say what per cent. of alcoholic content would cause liquid to smell like "hootch," and that they could not tell what per cent. of alcoholic content was in the liquid produced at the trial. One expressed the opinion that the liquid was "hootch" mixed with water. A witness for the state testified that none of them had tasted the liquid, and that they did not care to taste it. Several witnesses testified that, in their opinion, the liquid contained "hootch." One of the state's witnesses testified that the pipe which led into the cellar was connected with the sink in the soft drink parlor.

It is contended by appellant that the defendant's demurrer to the evidence should have been sustained: First, because there was no evidence tending to show that defendant, Clifton Parks, was in possession of the liquid in question; and second, because there was no evidence that the liquid in question contained ½ of 1 per cent. of alcohol by volume; and third, because there was no evidence that the liquid was potable.

Opinion.

In this case it is necessary to distinguish between suspicious circumstances and circumstantial evidence. The commission of a crime may be established by circumstantial evidence, but to do so two things are necessary: First, the circumstances must be inconsistent with any theory of innocence of the crime charged; second, the circumstances must not be so far removed from the ultimate facts to be established that it becomes necessary for the jury to draw one inference from another.

The evidence, when so weighed, must establish the corpus delicti and the defendant's connection with the crime. In this kind of cases the corpus delicti is established by evidence tending to show that intoxicating liquor is in the possession of some one. If it then be proved, either by admission or otherwise, that the possession was in the defendant, the state's case is established.

In this case the state attempted to establish appellant's connection with the crime by proof of these facts: (1) He was in his brother's place of business when the liquid in question was discovered. (2) He delayed a few minutes before opening the door to admit the officers. (3) He rinsed a fruit jar in a bucket of water.

One in possession of a building, either as owner or lessee, is also presumed to be in possession of everything contained within the building. Therefore, the discovery of liquor within a building is proof of the possession of the liquor by the one in possession of the building. State v. Lee (Mo. App.) 298 S. W. 1044; State v. Sillyman (Mo. Sup.) 7 S. W. (2d) 256; State v. Blocker (Mo. App.) 274 S. W. 1097; State v. Pigg (Mo. App.) 10 S. W. (2d) 320; State v. Chapman (Mo. App.) 10 S.W.(2d) 962. State v. Briggs (Mo. App.) 281 S. W. 107. Therefore, the evidence in this case established possession of the liquid in question in the lessee, appellant's brother.

The Supreme Court of Missouri, in State v. Huff, 317 Mo. 299, 296 S. W. 121, has held that the discovery of intoxicating liquor within an occupied building raises no presumption that the liquor is in the possession of one found in the premises, even though he commits suspicious acts and attempts to conceal evidence. The case so clearly decided principles involved in this case that we feel justified in dwelling...