State v. Ritz

• Citation: 65 Mont. 180
• Decision Date: 25 November 1922
• Docket Number: No. 5068.,5068.
• Parties: STATE v. RITZ.
• Court: Montana Supreme Court

65 Mont. 180

STATE

v.RITZ.

No. 5068.

Supreme Court of Montana.

Nov. 25, 1922.

Appeal from District Court, Dawson County; Frank P. Lieper, Judge.

August Ritz was convicted of unlawfully manufacturing intoxicating liquors, and appeals. Reversed and remanded.

Hurley & O'Neil, of Glendive, for appellant.

W. D. Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for the State.

LYNCH, District Judge (sitting in place of FARR, J., disqualified).

In an information filed in the district court it is alleged that the defendant, in the county of Dawson, state of Montana, on the 11th day of December, 1921, did willfully and unlawfully manufacture, possess, transport, sell, and barter intoxicating liquor. The action came regularly on for trial on the 17th day of March, 1922, and at the conclusion of the state's case the attorneys prosecuting elected to stand on the charge of unlawfully manufacturing intoxicating liquor. The defendant was found guilty, and sentenced to a term of four months in the county jail and to pay a fine of $1,000. He has appealed from the judgment.

Jack Dell, the principal witness for the plaintiff, testified that he was a coal miner and farm hand by occupation, and first met the defendant in the latter part of August, 1921, in Richey, Mont. The defendant at that time hired him to work for one John Hensey, who owned a ranch some distance from the town, for the sum of $3 per day, and afterwards drove him to Hensey's place, where he remained until harvesting was over. On or about the 7th of October, when his term of service with Hensey expired, the defendant engaged him to work on his ranch, which was close to that of Hensey, for the sum of $100 a month. On the ranch stood a dwelling house, consisting of two stories and a basement. Entrance to the basement could be gained through an outside door or by way of the kitchen on the first floor. One Peter Willert looked after the ranch for the defendant, and with his wife and two children occupied the house. He also took up his residence therein, and spent the first few days husking corn and repairing fences under the direction of Willert. On the third or fourth day of his employment the defendant, who lived in Richey, proposed that he turn his attention to the making of “moonshine whisky” for him, and offered to pay him $200 a month for such service. He had had no experience in that kind of work, and accepted with some reluctance. The defendant gave him $22.04 with which to purchase a still, and told him to order it from a certain Philadelphia firm. He then directed him to put the basement in order, remove a cookstove from the bunkhouse thereto, and connect it with the chimney. There were empty barrels in the basement at the time, and at the defendant's suggestion he carried some others that were lying around the yard into it. The defendant ordered him to get rye from the granary, and at intervals brought sugar and yeast from town in his Buick car. He gave him information as to the proper way to make “moonshine whisky,” mentioning rye, sugar, yeast, and water as the ingredients. The still arrived about October 30, was installed without delay, and from then on to December 11 he distilled “moonshine whisky” therewith. At the instance of the defendant and with his money he bought a supply of coloring matter and a tester to determine the alcoholic strength of the liquor. The defendant came to the place in his car two or three times a week, and brought back in jugs the product of the still. Once, between October 30 and December 11, he remained at the farmhouse overnight and drank rather freely. On the 23d of November he met the defendant, who instructed him to go into the basement and stay there while one Ralph Levengood carried a 100-pound sack of sugar from his car into the kitchen, and to remove it to the basement so soon as he had left. Through the basement window he saw Levengood take the sugar into the house. He put three or four gallons of the moonshine in his trunk because the defendant would not pay him for his work. The trunk was locked and stored in the bunkhouse. Some time afterward, and before December 7, he told the defendant what he had done. About the 7th of December the defendant ordered him to dismantle the still, remove anything incriminating from the place, and “clear out,” as he feared he himself would get into trouble, and then took three half-gallons of the liquor and placed them in his car. From the car he came back to the bunkhouse. Next day he found his trunk broken open, and the moonshine gone. He disregarded the order which the defendant gave him, and on December 11, because he had refused to pay him for his services, led the sheriff and undersheriff of Dawson county by prearrangement to the basement, where they found the still in operation and seized everything of evidentiary value. He was then placed under arrest and put in jail.

A. H. Helland, a witness for the plaintiff, testified that in the months of November and December, 1921, he was sheriff of Dawson county. On the 11th day of December the witness Dell accompanied him, the undersheriff, and one Henry Holler from the home of the latter to the basement of the Ritz house, a distance of about 1 1/2 miles. They found therein a cookstove, with fire in it; a still, containing mash, on the stove; a number of barrels, some of which contained mash, and one of which contained water; a bottle under the spout of the still; a quantity of coloring matter; and a tester. A liquid of some kind was being distilled from the mash in the still. He carried away the still, a quantity of the mash, the bottle with its contents, the coloring matter, and the tester. The bottle was subsequently turned over to one E. L. Hayes for chemical analysis.

Elmer Martinson, the undersheriff and a witness for the plaintiff, testified substantially to the same state of facts as did Mr. Helland.

E. L. Hayes, a witness for the plaintiff, testified that he analyzed the liquid in the bottle which Mr. Helland gave him, and found that it was 53 per cent. alcohol by volume.

Peter Willert, testifying in behalf of the plaintiff, said that the defendant was his brother-in-law; that he and his family lived for the last two years on his farm about seven miles southwest of Richey; that Jack Dell was on the farm during all of November and a part of December; that he knew Dell had a still in operation in the basement; that he met the defendant in his automobile on the road between Richey and the farm on an average of twice a week while the still was running; and that he saw him in the house just before Thanksgiving and on the 4th and 7th of December.

Mrs. Petra Willert, testifying in behalf of the state, said that she was the wife of Peter Willert, and lived with him and their two children on the August Ritz ranch; that Jack Dell lived there in November and a part of December; that during that time the defendant came to the house once or twice a week; that the last time he came before Dell left the place she saw him go into the basement and afterwards come out with three jugs in his hands and go in the direction of his car, which was near the barn, and that on the day following this occurrence she saw Dell's trunk in the bunkhouse, and it was broken open.

R. P. Levengood, testifying in behalf of the state, said that on November 22 he took a stallion and bull from Richey to the ranch for the defendant, and at his direction carried a 100-pound sack of sugar from his car into the kitchen of the farmhouse.

The defendant was a witness in his own behalf, and contradicted the testimony of Dell in several important particulars. He said, among other things, that he did not hire Dell to work for Hensey or himself; that shortly before Dell got through at Hensey's he suggested to him that he be allowed to reside in his farmhouse later on while out of work, as he expected to locate on a homestead near by some time during the winter; that he consented, provided it was satisfactory to Mrs. Willert, and that soon after Dell moved to the house; that he went from Richey to his ranch once and occasionally twice a week while Dell was there, but did not always enter the house; that he knew nothing about the still being in the basement until a day or two before Thanksgiving, when Dell led him from the kitchen to where it was; that the still was not running then; that he remonstrated with Dell, informed him he did not have his permission “to do anything like that,” ordered him to get off the place and remove the “stuff,” but took one drink of “moonshine whisky” out of a bottle before leaving; that Dell promised to do as directed; that he was at the house on the 4th of December, but did not go into the basement; that Dell rode back to Richey with him, and on being asked on the way if he had removed the “outfit” and “cleaned everything up,” he replied in the affirmative; that he was at the house again on the 7th of December, found Dell lying drunk in the basement, and saw three half-gallon jugs of moonshine there, which he took upstairs and afterwards destroyed near the barn; that later in the day when Dell came up to the kitchen he again ordered him to remove the still; that he did not break into Dell's trunk or remove the liquor therefrom; that he did not at any time take any liquor away from the ranch; that he never gave Dell money with which to buy the still or anything else connected with the making of moonshine; that he never asked Dell to do any work for him but once, when he requested him to bring an armful of wood into the kitchen; that of the five barrels he saw in the basement only one belonged to him--where the others came from he could not say; that he did not return to the ranch between the 7th and 11th days of December, and that the sack of sugar was for the use of the Willert family during the winter months.

Witnesses besides those mentioned testified for one side or the other, but we do not deem it necessary to a...