State v. Sheeler

• Decision Date: 06 December 1927
• Docket Number: No. 20071.,20071.
• Citation: 300 S.W. 318
• Parties: STATE v. SHEELER et al.
• Court: Missouri Court of Appeals

300 S.W. 318

STATE v. SHEELER et al.

No. 20071.

St. Louis Court of Appeals, Missouri.

December 6, 1927.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Dave Sheeler and L. M. Saunders were convicted of the possession of intoxicating liquor, and Saunders appeals. Reversed and remanded.

Clarence A. Barnes, of Mexico, Mo., for appellant.

A. C. Whitson, Pros. Atty., of Mexico, Mo., for the State.

BECKER, J.

Appellant, Saunders, and his codefendant, Sheeler, were charged in an information with wrongful possession of intoxicating liquor. Saunders filed a motion for a severance, which was overruled. Thereupon a trial was had, resulting in the conviction of both defendants, and their punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for a term of 60 days. Defendant Saunders alone appeals.

A reading of the record constrains us to the view that the learned trial judge correctly ruled the demurrer offered by the defendant Saunders at the close of the state's case, and at the close of all of the evidence in the case. The testimony tends to prove that Saunders and his codefendant, Sheeler, had resided together in the city of Mexico for some time; that during the summer of 1925 Saunders built a house, upon a lot theretofore purchased by him, and upon its completion the defendants Saunders and Sheeler, together with Mrs. Sheeler, who was the divorced wife of Saunders, moved into the house, where they lived together as one family, all eating at the same table, and both parties supplying the groceries, provisions, etc. Saunders had access to all parts of the house, and the telephone in the house was listed in his name and paid for by him.

According to defendant Saunders he had rented the property to Sheeler for $35 per month, and had himself in turn made arrangements to keep a room for himself in the house, and board with and have his washing done by the Sheelers, at $8 per week, and that, when Saunders' son was in town, he shared this room with him, and that a Mrs. Wappler and her 12 year old daughter and 6 year old son also boarded with the Sheelers.

On September 18, 1926, the prosecuting attorney procured a search warrant to search the premises, and in company with the sheriff, chief of police, and two night police of the city of Mexico, he went to the home of the defendant, about 8 o'clock in the evening, and executed the warrant and searched the premises. In the basement in between the walls of the coal bin, the officers found a cache of nine pint bottles of whisky and a number of empty bottles. The board making the opening into the cache between the walls of the coal bin had the appearance of being nailed fast, but the nails had been cut loose in the studding and a board nailed over the end thereof so as to hold the board in place. In the bathroom adjoining and communicating with Saunders' room a bottle was found that had contained whisky, and a jug was found on the premises that had contained whisky.

Whilst the officers were making their search, defendant Saunders came to the house and asked if the warrant had anything to do with him. Upon being told that it had not, he insisted upon the officers searching him and his room, which they did, but found no liquor on his person or in his room, but did find the empty bottle in the adjoining bathroom, which had contained whisky. After being searched, Saunders went away and did not return.

The state introduced testimony that on November 9, 1925, after the house had been completed, 11 pieces of shiplap 1×8, — feet long, and one piece of yellow pine 1×4, 10 feet long, had been purchased by defendant Saunders and delivered to his house, and that the east wall of the coal bin, where the cache had been found, had been made out of shiplap. Whilst the premises were being searched four or five people made their appearance at the back door of the house. Though the evidence is conflicting on the question of whether the defendant Saunders was in charge of the premises, yet in our view it is such as to warrant its submission to the jury. State v. Blocker (Mo. App.) 274 S. W. 1097; State, v. Cobb, 309 Mo. 89, 273 S. W. 736; State v. Price (Mo. App.) 274 S. W. 500; State v. Brokaw (Mo. App.) 281 S. W. 105.

It is urged that the court erred in permitting the prosecuting attorney to indorse upon the information at various times throughout the trial the names of seven witnesses, each of whom was called as a witness for the state, though the defendant was afforded no opportunity of being prepared to examine said witnesses and to meet the testimony offered. The record discloses that, as each of these witnesses, whose names did not appear upon the information as originally filed, testified, objection was made to the witness testifying in that his name had not been indorsed on the information, and in each case the court overruled the objection and permitted the prosecuting attorney to indorse the name of such witness upon the information. In no instance was an exception saved to the action of the court. In this situation the point is not here for review.

However, sections 3849 and 3889, Revised Statutes of Missouri 1919, which among other things, require that the names of the witnesses for the prosecution shall be indorsed on the information in like manner and subject to the same restrictions as required in cases of indictments, have been repeatedly construed to permit the state to call and examine witnesses other than those indorsed upon the information. See State v. Myers, 198 Mo. 225, 94 S. W. 242 et seq., and cases therein cited.

Complaint is made that error...