State v. Pope

• Decision Date: 06 March 1925
• Docket Number: No. 3517.,3517.
• Citation: 269 S.W. 411
• Parties: STATE v. POPE et al.
• Court: Missouri Court of Appeals

269 S.W. 411

STATE v. POPE et al.

No. 3517.

Springfield Court of Appeals. Missouri.

March 6, 1925.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Isom Pope and others were convicted of possessing a still, and they appeal. Affirmed as to Isom Pope, and reversed as to other defendants.

L.E. Tedrick, of Poplar Bluff, for appellants.

BRADLEY, J.

Isom Pope, Mitt Henderson, Allen Given, and Ab Hill were charged with possessing a still under section 6588, R. S. 1919, as amended, Laws 1921, p. 414, § 1. Defendants were convicted, and Pope's punishment was fixed by the jury at a fine of $400, and the punishment of the other defendants was fixed at a fine of $200 each. Failing to get a new trial, defendants appealed.

The form of the verdict is challenged, because general, and it is stated that the information charges several offenses in a single count. A copy of the information is not in the record; hence we are not in a position to rule on the point.

The only other question of merit is the sufficiency of the evidence. For the purposes of the demurrer it may be said that the evidence for the state established the following facts: The deputy sheriff with three others found a complete still about 9:30, o'clock p. m. on November 19, 1922. The still was about 2½ or 3 miles south of the town of Fisk in Butler county, about 50 yards west of the St. Francis river, and about a quarter of a mile east of the levee. There was a dim road leading from the public road on the west to the river and by the still. When the officers found the still, no one was about it, but everything indicated recent operation. The still was of a large capacity, and there were about 1,800 gallons of mash in boxes or bins. The officers remained at the still about 30 minutes, and then went away for the night, but returned between 5 and 6 o'clock the next morning, and secreted themselves thereabout. In a short time defendant Ab Hill approached from the west walking along the dim road that led from the levee and the public road. When Hill reached a point 50 or 75 feet from the still, he stopped and gave three long whistles. After whistling he walked on up and "began looking around," and at that moment the officers appeared and arrested him. Hill was taken back into the woods, and the watch resumed. In a short time, about a half or three quarters of an hour, defendants Henderson and Given approached traveling the dim road. Henderson was on horseback, but Given was on foot and was carrying a one-gallon tin bucket, and a .22 rifle. Henderson dismounted and "looked around." There was some mash leaking from one of the containers, and of this Henderson said to Given: "What is the matter here? I never seen this thing leak this way before." After making this remark Henderson went into a small shed that was close by. Given was looking around and examining the big vat. At this point the officers appeared, and Henderson and Given were arrested. After waiting a while, the still was dismantled and the mash destroyed.

On the way out with the still, Tout on the public road, the officers met defendant Pope. It is not clear just how Pope happened to be where met, but he lived in the neighborhood, and his presence at the time and place is not of consequence. None of the defendants were retained in custody, but were told to come into town, and they did so. The large vat was a boxlike contraption built of pine. It had inscribed on it, "Built by Baldridge." Baldridge was a carpenter who built a box of like description for C. H. Lyon, and Lyon sold the box built for him to Pope. Defendant Pope had also recently bought from Lyon, who sold meal, chops, etc., a considerable quantity of meal. The next day after the raid Pope went to Lyon and asked a refund on some meal he had paid for, but which had not been delivered, and Lyon gave him credit for $8. On this occasion Pope said to Lyon, speaking of the raid, that he "had been tore up."

Defendant's evidence was about as follows: Hill testified that he lived on his farm in the vicinity of the still, but west of the levee, and about a half mile from the site of the still; that on the day prior to the raid he ran onto the still while hunting for his hogs, and the man in charge gave him a drink, and that his business at the still on the morning of the raid was to get another drink; that the man in charge told him not to run upon him, but to whistle for him. Hill denied any ownership or connection with the still in any manner. He said that he did not know the man who was in charge when he got the drink, but gave a description of him.

Henderson's evidence was to the following effect: That at the time of the discovery of the still he lived in Fisk, and worked at a stave mill; that he left Fisk that morning on horseback going to McCain's after a goat he had bought the day before, and overtook defendant Given, and asked Given where he was going, and that Given said he was going over to Jim Cozart's place; that he rode along with Given until they got to McCain's; that they went over the levee thinking that they might get a shot at something, and accidentally ran onto the still; that he got down and examined the place and that he remarked, "There's been some one here lately, or this box is leaking." He denied any connection with the still in any manner. McCain was a witness and corroborated Henderson as to the goat deal. He said that he sold the goat on Saturday, and that Henderson was to come after it the next morning.

Defendant Given testified that at the time he lived a half mile south of Fisk;...