State v. Richardson

• Decision Date: 31 December 1924
• Docket Number: 25744
• Citation: 267 S.W. 841
• Parties: STATE v. RICHARDSON
• Court: Missouri Supreme Court

267 S.W. 841

STATE v. RICHARDSON

No. 25744

Supreme Court of Missouri, Second Division

December 31, 1924

Chas F. Boyd, Charles Farrar, and G. Purd Hays, all of Ozark, for appellant.

Jesse W. Barrett, Atty. Gen., and William L. Vandeventer, Sp. Asst Atty. Gen., for the State.

OPINION

HIGBEE, C.

The information, filed December 29, 1923, charges that the defendant, on June 25, 1923, at the county of Christian, did unlawfully, willfully, and feloniously make, brew, and distill hootch, moonshine, corn whisky, contrary to the form of the statute made and provided, and against the peace and dignity of the state. The defendant was tried on January 30 1924, convicted, and sentenced to the penitentiary for a term of three years in accordance with the verdict of the jury, and appealed.

1. On January 29 the defendant filed an application for a continuance on account of his inability to secure the attendance of Mrs. Laura Richardson, Dan Lewis, and Jess Clevenger as witnesses. The application sets out the facts to which Mrs. Richardson would swear. This was fully covered at the trial by the evidence of four other witnesses for the defendant who testified to practically the same facts. The evidence of Mrs. Richardson would therefore have been merely cumulative, and her absence did not entitle the defendant to a continuance. State v. Tracy, 294 Mo. 372, 380, 243 S.W. 173; State v. English (Mo. Sup.) 228 S.W. 746, 749.

It was alleged that Lewis and Clevenger would testify that the still belonged to Keets and Mob Weatherman and that Richardson had no interest in it. The evidence that Lewis and Clevenger were expected to give was immaterial, as the defendant was not charged with the ownership, use, or possession of a still in violation of section 6588, Laws 1921, p. 414, but with the making of corn whisky in violation of section 21, Laws 1923, p. 242. State v. English, supra. Besides, the application failed to show due diligence in endeavoring to secure the attendance of these two witnesses, and the court properly exercised its discretion in overruling the application.

2. The defendant also filed a motion to quash the information (1) because the section of law upon which the information is bottomed, being section 21, p. 242, Session Acts 1923, is unconstitutional and void; (2) because the information does not state facts sufficient to constitute an offense against the defendant; (3) because the information does (not?) negative the proposition that the defendant was not in the lawful manufacture of intoxicating liquors, as required by law.

The first specification of the motion is too general. 'It has long been ruled that a finger must be placed upon the provision of the Constitution alleged to be violated before the question is sufficiently raised to acquire notice. General allegations, as here found, will not do.' State ex rel. v. Tibbe Elec. Co., 250 Mo. 522, 527, 157 S.W. 635; 16 C. J. 785.

The information is in the language of the statute. It sets forth all the constituent elements of the offense, and is sufficient. State v. Brown (Mo. Sup.) 262 S.W. 710, 711, where it is held, construing this identical section, that the words 'hootch,' 'moonshine,' 'corn whisky,' not being connected with a conjunctive or disjunctive, must be taken as synonymous, and are different expressions describing the same kind of liquor.

It was not necessary to negative the exceptions in the proviso.

'It shall not be necessary in any affidavit, information or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful.' Section 6596, R. S. 1919.

The proviso is a distinct and independent clause. It is not descriptive of the offense, and is only a matter of defense. State v. Bockstruck, 136 Mo. 335, 351, 38 S.W. 317. The motion to quash was properly overruled.

3. The evidence for the state is that on the afternoon of June 25, 1923, E. M. Bishop, sheriff of Christian county, and three others, went to the ranch of about 1,000 acres of rough, timbered land then occupied by the defendant, to search for a still. They found the defendant, Richardson, Sid Meadows, and Keets Weatherman in a deep hollow on this ranch, operating a still. They had two barrels of mash, etc., and had made from three to four gallons of corn whisky. The sheriff ordered the defendant and his two companions to hold up their hands. Richardson moved toward some loaded revolvers that were lying on a blanket or piece of cloth near him, but a second order resulted in his throwing up his hands. The defendant said: 'There is no use to deny it. You caught us in the act.' Mr. Johnson, one of the sheriff's posse, picked up a bucket containing water, as he supposed, which he was about to throw on the fire, when one of the three moonshiners exclaimed: 'Hell, that's whisky.' The sheriff arrested them and took the whisky, still, etc., into his custody. Separate informations were filed against Richardson and the two others.

Keets Weatherman, a witness for the state, testified:

'I pleaded guilty to my part of this affair and served my time in full. I bought a bushel of meal and a hundred pound sack of sugar at the Farmers' Union. Link Richardson (the defendant) was with me. We didn't have much talk about making the whisky. I told him it was risky business. He said something about me being too scary. When we got to Link's place, I left it in an old house about a quarter of a mile from his house. Link wasn't with me. I went out there and waited till Link came. The still was up the hill by an old mining shaft. Me and Link got the still, made a fire and strained some of the mash. Sid Meadows was there. He drank so much of the mash it knocked him out for a while. We had been there about four hours when the officers came. We had been operating the still about an hour. We didn't have the tools to put it together, and Link went up to the field and got a monkey wrench. This was the first time we operated the still. We made about...