State v. Powers

• Decision Date: 27 October 1925
• Docket Number: 1270
• Citation: 33 Wyo. 424,239 P. 1044
• Parties: STATE v. POWERS [*]
• Court: Wyoming Supreme Court

239 P. 1044

33 Wyo. 424

STATE v. POWERS ^[*]

No. 1270

Supreme Court of Wyoming

October 27, 1925

APPEAL from District Court, Natrona County; CYRUS O. BROWN, Judge.

B. J Powers and Carl Powers were convicted of unlawfully manufacturing and possessing intoxicating liquors and they appeal. The material facts are stated in the opinion.

Affirmed.

M. F Ryan for appellant.

The evidence is insufficient to sustain the verdict, and is contrary to law. There was no homestead where the still was found, there being nothing but a fence around a sand pile. Defendants lived together on the homestead of B. J. Powers there was evidence of tracks in the road and automobiles were seen driving around the neighborhood during the night. No intoxicating liquor was produced at the trial nor evidence of any being found, except 20 gallons found out on the prairie; there was no proof that it was intoxicating liquor. The case falls within the rule stated in State vs. Lewis, 223 P. 915, holding that a conviction in a criminal case cannot be founded upon conjecture nor upon probabilities however strong; there was a reasonable doubt as to the existence of any of the essential elements of the crime charged, and defendants should have been acquitted; State vs. Pressler, 16 Wyo. 214; Graham vs. State, 152 P. 136; Blake vs. State, 160 P. 30, L. R. A. 1917 B; State vs. Lumpkin, 169 P. 939; Adair vs. State, 180 P. 253; State vs. Grover (Ida.) 207 P. 1060; State vs. Frey, (Kans.) 208 P. 574; State vs. Sullivan (Ida.) 199 P. 647; there was no evidence connecting defendant with the possession or manufacturing of intoxicating liquor.

David J. Howell, Attorney General, and John C. Pickett, Asst. Atty General for respondent.

The officers found a still-house in a sand blowout constructed of fence posts covered with sand; this still-house contained a large still and 13 fifty gallon barrels of mash used in making moonshine whiskey. Defendant, B. J. Powers rode up to the still-house and got off his horse and then, observing one of the officers at a short distance, rode up to where the officer was, and the officer detained him until the other officer returned. Two homesteads belonging to defendants were connected by a well used road, which ended at the still-house; the tracks in the road were made by defendants' wagon. Defendant, B. J. Powers, rode away, but was recognized in an automobile near the still that night. Three sacks of sugar and a sack of corn was found in the homestead house of B. J. Powers. Defendant Carl R. Powers arrived at the homestead with a wagon that night containing a barrel of gasoline, a quantity of kerosene, some coal and an empty 50 gallon barrel. There were other circumstances and movements of the parties including the discovery of 20 gallons of whiskey near the homestead, which would mean nothing else except the guilt of defendants, which justified the jury in returning a verdict of guilt. Where there is any evidence to support a verdict, the court should not direct a verdict of acquittal; 16 C. J. 936; 26 R. C. L. 1067; Cornish vs. Ter. 3 Wyo. 95. Liquor and appliances for its manufacture found upon the premises of defendants is sufficient to justify a jury in finding that said articles were unlawfully possessed by defendants; Smith vs. Com. 116 S.E. 246 (Va.); Taylor vs. State, (Ga.) 62 S.E. 1049; Usry vs. State (Ga.) 117 S.E. 108; Wampler vs. Norton (Va.) 113 S.E. 733; Malcom vs. State (Ga.) 112 S.E. 651; George vs. Com. (Ky.) 250 S.W. 488; Ward vs. State (Ark.) 243 S.W. 857; Appling vs. State (Ark.) 114 S.W. 927; Edwards vs. State (Ala.) 95 So. 560; Reeves vs. State (Ala.) 95 So. 203; McBroom vs. State (Ala.) 94 So. 790; Lindsey vs. State (Ala.) 93 So. 331; violation of liquor laws may be proven by circumstantial evidence, if consistent with guilt and inconsistent with innocence, and of a character to lead to but one fair and reasonable conclusion; Curran vs. State, 12 Wyo. 553; Gardner vs. State, 27 Wyo. 316; Malcolm vs. State, 112 S.E. 651; Butler vs. City, (Ga.) 75 S.E. 858; Cage vs. State (Ga.) 75 S.E. 160.

TIDBALL, District Judge. POTTER, C. J., and BLUME, J., concur. KIMBALL, J., did not sit.

OPINION

TIDBALL, District Judge.

Defendants and appellants were convicted in the trial court of violation of the liquor laws of the State and were duly sentenced therefor and have appealed to this court.

In their brief, defendants say: "In our argument we will discuss all assignments of error together as the specifications of error present but one question, viz: The evidence is insufficient to sustain the verdict and is contrary to law."

There is but one question, therefore, in this case: --Is the evidence sufficient to sustain the verdict? We think it is. It is true the evidence is more or less circumstantial, but strong. The defendants were convicted of unlawful possession and of unlawful manufacture of whiskey. A minute review of the evidence would serve no good purpose, as the identical facts are not likely to occur again in another case.

The defendants are brothers and lived on homesteads in Natrona County about two miles apart, located in what is described as the sand hills some twenty miles from Casper, on the lonely wind-swept, dry and sandy desert. In the middle of the Carl Powers place was located the only improvement, save a fence, that had been erected on his homestead, said improvement consisting of a still house constructed of fence posts and covered over with mother earth, situated in a commodious sand blowout. The furniture in this house consisted of a still of large dimensions and thirteen fifty-gallon barrels of mash. Directly from this still house to the home of B. J. Powers, but leading nowhere else, there was a road which showed signs of much use by a narrow-tired wagon. On the B. J. Powers place was a small tarpaper covered house, a barn, shed and corral. On the fateful day alleged in the information an under-sheriff of Natrona County, named W. C. Irving, and a Federal Prohibition agent, S. R. Owens, went to call upon the Powers brothers at their respective homesteads. Before arriving at their destination, Sheriff Irving had car trouble and returned for repairs, but Owens...