State v. Ross
| Decision Date | 12 December 1927 |
| Docket Number | No. 28251.,28251. |
| Citation | 300 S.W. 717 |
| Parties | STATE v. ROSS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, New Madrid County; E. P. Dorris, Special Judge.
John Ross was convicted of manufacturing moonshine corn whisky, and he appeals. Reversed and remanded.
Von Mayes, of Caruthersville, for appellant.
North T. Gentry, Atty. Gen., and H. O. Harrawood, Sp. Asst. Atty. Gen., for the State.
On July 14, 1925, the prosecuting attorney of Pemiscot county filed a verified information in the circuit court charging defendant with manufacturing, on April 14, 1925, moonshine corn whisky. On change of venue to New Madrid county, the jury on the first trial failed to agree, resulting in a mistrial. At the next term of court defendant was again tried to a jury which convicted him and fixed his punishment at three months in the county jail. An appeal was duly taken from the judgment entered on the verdict.
The evidence for the state warrants the finding that the sheriff of Pemiscot county, with deputies, armed with a search warrant authorizing the search of a certain box house near what is known as Old river, near the southeast corner of Concord township, on the land owned by John Ross, proceeded to the home of defendant. The evidence fails to disclose that they served the warrant or informed Ross that they had it. On reaching his home, the officers immediately requested the loan of his boat, which he granted, to cross a slough of water, then about 50 feet wide, known as Old river, the former bed of the Mississippi. They followed a beaten path from his house to the river, where they found the boat, crossed the slough, and there took a path through a willow thicket 30 or 40 feet high to a still, about half a mile distant from the far side of the slough. Tracks were found suggesting that a boat had landed on the far side of the slough and that people had recently traveled the path. The still was located on the island, on an erection of poles comprising a platform 10 feet or more above high-water mark. A complete still, eight or ten barrels of mash, and two gallons or more of white moonshine corn whisky were found on the platform. The still had probably been operated within the week. The officers then returned to the house and arrested defendant, the sheriff testifying to the following colloquy:
Defendant was a farmer, cultivating 20 or more acres. The nearest farmhouse to that of defendant was from a quarter to a half mile away. About a mile down the river from the still were located boats and tents. No other path than the one taken to the still led to or from it in any direction. The still was not on defendant's land, and the record fails to show by a scintilla of evidence that he controlled or was in possession of the land on which the still was found. No house was situated on the island. One witness stated that he saw defendant, after the officers had gone into defendant's house, go to the barn where he followed him and there saw a three-gallon jug turned upside down in the hay bin; that it was dripping; and that it smelled like moonshine corn whisky. The witness then asked him if he had poured it all out, and he said, "Hush, I didn't pour anything out." I asked him what was that running through, and he said, "Hush, I just had a little for my own use," or something like that. The witness testified that he was a surveyor, that he had surveyed defendant's land, that it embraced land on the island, but it did not extend to the place where the still was found.
Defendant's testimony tends to show that the still as located by the testimony of the officers was not on his land, and that it was not his still. Several people lived in the woods in tents, two men above him about a fourth of a mile, and below him were shanty boats. Tom Johnson lived on the island. Other people used his boat to cross over to hunt hogs and cattle, and often he waded across in hip boots to recover his boat on the far hank of the slough. He maintained the boat for fishing purposes. He had never been convicted of any offense.
In rebuttal a witness testified that defendant's reputation for morality was bad, but he stated on cross-examination that he had never heard his reputation for truth and veracity questioned.
I. Finding the record proper without error, and being precluded by the ruling in State v. Standifer (Mo. Sup.) 289 S. W. 856, from...
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