State v. Stanfield

• Decision Date: 12 December 1927
• Citation: 1 S.W.2d 834
• Parties: STATE v. STANFIELD.
• Court: Missouri Supreme Court

1 S.W.2d 834

STATE v. STANFIELD.

Supreme Court of Missouri, Division No. 2.

December 12, 1927.

Motion for Rehearing Overruled January 11, 1928.

Appeal from Circuit Court, Morgan County; H. J. Westhues, Judge.

William Stanfield was convicted of feloniously manufacturing, making, brewing, and distilling hootch, moonshine, and corn whisky, and he appeals. Affirmed.

North T. Gentry, Atty. Gen., and Smith B. Atwood, Asst. Atty. Gen., for the State.

HIGBEE, C.

On October 20, 1924, an information was filed in the circuit court of Cooper county charging that James Cramer and the defendant, William Stanfield, on or about July 28, 1924, did feloniously manufacture, make, brew, and distill hootch, moonshine, and corn whisky. On the application of the appellant a change of venue was ordered to Morgan county. On December 16, 1925, the cause was continued as to James Cramer, "for the reason that he is a fugitive from justice," and the cause against William Stanfield was tried to a jury, resulting in a verdict finding him guilty as charged in the information, and assessing his punishment at "two years in State Prison." After sentence, the defendant appealed.

The evidence for the state is that, on July 28, 1924, Martin Johns, a police officer in the city of Boonville, Mo., with two other officers and the prosecuting attorney, searched the farm of William Dorflinger, in Cooper county, on which Stanfield and his wife then lived. In a hollow or ravine, in a cornfield about half a mile from the public road, they found a still in operation with a fire under it. Stanfield was squatting down about six or seven feet from the still, as if hiding, and his wife and a boy about eight years of age were at a pond nearby, where Mrs. Stanfield was fishing. Stanfield ran up on the bank where he had a blanket, a shotgun, and two or three sacks of chopped corn. He grabbed the gun when Johns "hollered" at him to halt, but "he jumped over the fence, and jumped around with the gun as if he would shoot." The officers fired several shots. Mrs. Stanfield screamed: "For God's sake, don't shoot my husband; don't shoot him." Stanfield ran away. Some of the officers tracked him through the cornfield to a little house about a quarter of a mile away where Stanfield and his wife were living. The still contained about 40 gallons of mash. There was a copper coil running from the still through a barrel of water. Corn whisky was dripping from the coil into a pan. The officers poured the contents of the pan into a jug, which, with the still and coil, were identified and offered in evidence at the trial.

The defendant testified that he moved into the little house on Saturday evening, July 26, and lived there two days; that he worked for Lud Cramer on Monday, July 28; that he was not at the still at any time, and never saw it; that he did not see Martin Johns on July 28; that the first time he saw him was on the Saturday following, at Pilot Grove, when Johns arrested him.

Mrs. Stanfield testified that she and Stanfield moved into the little house on July 26; that she was fishing at the creek when the officers came between 4 and 5 o'clock in the afternoon; that Stanfield was not there, but was working for Lud Cramer that day; that she had just started to go home when the officers came, and she saw some one run, and Mr. Johns drew a gun on her, and told her to stop, and they took her to the house, and Stanfield came home late in the afternoon.

Lud Cramer testified that Stanfield worked for him on his farm on July 28 until late in the afternoon. The state offered evidence in rebuttal tending to impeach the general reputation of Stanfield and Cramer for honesty and integrity. At the close of the case the court overruled a demurrer to the evidence.

The appellant has not favored us with a brief. The state's brief was prepared before the bill of exceptions was filed, and does not consider errors alleged to have occurred at the trial.

1. There are general assignments of error in the motion for new trial, that the court erred in admitting and excluding evidence, and in giving and refusing instructions. They cannot be considered. Section 4079, Laws of 1925, p. 198; State v. Standifer (Mo. Sup.) 289 S. W. 856; and State v. Murrell (Mo. Sup.) 289 S. W. 859.

2. It is assigned as error that the court permitted the jury to separate during the trial of the cause, and failed to discharge the jury on motion of the defendant.

At the noon recess on the first day of the trial, the court, after giving the jurors the usual admonition, permitted them to go to lunch unattended by an officer. When the court reconvened at 1 p. m., defendant's counsel objected —

"to the jury proceeding further in this case for the reason that the court allowed them to separate during the noon hour; the jury was instructed by the court while the attorney for the defendant was busy, and did not learn of the fact until some time after the jury had separated.

"By the Court: The court gave the jury the usual instructions not to talk about the case or discuss it among themselves or allow any one to discuss it in their presence, and these instructions were given the jury in the presence of counsel for the defendant, and no objection was made at the time; he objects after the jury is returned and ready to proceed in the case, and for that reason the objection is overruled."

"With the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess of the court during the trial in all cases of felony, except in capital cases; * * * but when the jurors are permitted to separate, after being impaneled as herein provided for, and at each adjournment the court must admonish them. * * *" Section 4026, R. S. 1919.

A similar question arose in State v. Mix, 15 Mo. 153, 157, where Judge Ryland said:

"Upon the trial, the court asked, `What shall be done with the jury?' And the counsel of both parties agreed that they might separate, under a charge from the court. This was at the adjournment at noon on the first day; and such separation continued afterwards, at each...