State v. Stough

• Decision Date: 18 February 1928
• Docket Number: 28662
• Parties: The State v. Asa Stough, Appellant
• Court: Missouri Supreme Court

2 S.W.2d 767

318 Mo. 1198

The State v. Asa Stough, Appellant

No. 28662

Supreme Court of Missouri

February 18, 1928

Appeal from Phelps Circuit Court; Hon. W. E. Barton, Judge.

Affirmed.

North T. Gentry, Attorney-General, and A. M. Meyer Special Assistant Attorney-General, for respondent.

(1) "The jury are the sole judges of the weight of the evidence and of the honesty and credibility of the witnesses," and this court will not weigh the evidence. State v. Hedrick, 296 S.W. 153; State v Harmon, 296 S.W. 395; State v. Scheufler, 285 S.W. 421; State v. Booker, 295 S.W. 482; State v. Hudspeth, 159 Mo. 200. (2) If an objection to evidence on the ground that it is incompetent and immaterial is insufficient, then an assignment in the motion for new trial, couched in the same language, does not inform the trial court of the ground of objection. State v Murrell, 289 S.W. 861; State v. Standifer, 289 S.W. 856. See, also, State v. Murray, 292 S.W. 437. (3) The fact that the still, utensils and whiskey found in the execution of the search warrant were not introduced in evidence, was not error. The defendant could not have been injured by the failure of the State to introduce evidence, nor is any reason apparent why the State should introduce exhibits which cannot, in the nature of things, be preserved in the record. It is not error to exhibit to the jury objects which, in their nature, cannot be introduced in evidence, to say nothing of their being preserved in the record. State v. Davis, 237 Mo. 237; State v. Gebhardt, 219 Mo. 718; State v. Curtner, 262 Mo. 219. The exhibits were there present but the court was not required to have them introduced in evidence, although they were used to illustrate the witness's testimony. State v. Allen, 23 Idaho 772; People v. Durrant, 116 Cal. 210 (b); Hughes v. State, 126 Tenn. 71. (4) Defendant's application for a change of venue was properly overruled: First: Reasonable notice of the filing of the application was not given to the prosecuting attorney. Sec. 3973, Laws 1921, pp. 206, 207; State v. Williams, 263 S.W. 199; State v. Keller, 263 Mo. 551. Second: The application did not show on its face that the affidavits supporting it were sworn to by persons residing in different neighborhoods. Sec. 3973, Laws 1921, p. 206. Third: The affidavit is insufficient because it is a joint affidavit and does not take the place of evidence as contemplated by the statute. State v. Bradford, 285 S.W. 500. Fourth: The affidavit states legal conclusions, not facts as required by the statutes. State v. Bradford, 285 S.W. 500. (5) Defendant's motion to suppress evidence and quash the search warrant under which it was obtained, was properly overruled. First: The validity of the warrant is not affected by the fact that oral testimony tends to show that the prosecuting attorney, or other applicant for the warrant, had no first-hand information as to the facts stated in the application, and the warrant may not be attacked aliunde to show mere information and belief. State v. Halbrook, 311 Mo. 664; State v. Stevens, 292 S.W. 37; State v. Marshall, 297 S.W. 67; Bowen v. Comm., 199 Ky. 400; People v. Kennedy, 303 Ill. 423; State v. Shaffer, 207 P. 229; State v. Kees, 114 S.E. 617. Second: The description of the place to be searched was sufficient, at least in the absence of any showing that it could have been misunderstood on the facts. The warrant was not void for indefiniteness on its face, and no testimony was offered by defendant to show the possibility of any mistake. State v. Lock, 302 Mo. 400; Olson v. Haggerty, 69 Wash. 48; Little v. Comm., 205 Ky. 55; People v. Urban, 228 Mich. 30.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

By an information filed in the Circuit Court of Phelps County, appellant was charged with the unlawful manufacture of hootch, moonshine and corn whiskey. He was convicted and the jury assessed his punishment at a fine of $ 500, and jail imprisonment for six months. Judgment and sentence followed the verdict and he appealed.

The State's evidence shows that on October 19, 1926, appellant was living on a farm about five miles west of Rolla in Phelps County. About ten o'clock in the morning of that day, the sheriff and one of his deputies went to appellant's house with a search warrant. While the sheriff was explaining his mission to appellant's wife, at the front door of the house, his deputy walked around the house and found appellant in the yard, near the entrance to the basement. Appellant invited the deputy into the basement and said: "Come down and see this stuff run off." They went to the basement and were followed immediately by appellant's wife and the sheriff. The officers found there a whiskey still, fully equipped and in operation. The still consisted of a copper boiler, connected, by a copper coil, with a cooling tank, filled with water, and a half-gallon tin container to catch the distillate as it dripped from the coil arranged for that purpose. The boiler, with a capacity of forty-five gallons, was full of corn mash and was resting on two lighted coal oil stoves. The mash was boiling and the manufacturing process was going on, under full blast, with the finished product dripping from the coil into the tin container. A three-gallon stone jar full of distilled liquor, a two-gallon keg of wine, and eight fifty-gallon barrels of mash, made of corn, water and syrup, were also found in the basement. The officers poured out all of the mash in the boiler and the barrels, and all of the liquor in the stone jar and the tin container, except a pint bottle of each, which they preserved for the trial. They also took charge of all of the apparatus used in connection with the still and the keg of wine. While appellant and the officers were in the basement, appellant inquired as to who made the complaint against him and asked to see the search warrant. As he read the search warrant and noted the name of the justice of the peace who issued it, appellant, referring to the justice, said: "He did that. He buys his whiskey some place else and has got it in for me." The two-pint bottles of liquor and the copper boiler, copper coil, oil stoves and other apparatus used in connection with the still, were exhibited before the jury at the trial and referred to by the sheriff and his deputy while on the witness stand, but were not identified and marked as separate exhibits and were not offered in evidence as exhibits in the case. The sheriff testified that the liquor in the two bottles was corn whiskey, and that he was able to identify it as such by smelling it. Another witness for the State, a former deputy sheriff, testified that he could identify corn whiskey by tasting it, and, after tasting the liquor in each of the two bottles, while testifying and in the presence of the jury, he said it was corn whiskey.

Appellant offered no evidence in his own behalf and has filed no brief in this court.

I. In the motion for a new trial, error is assigned to the action of the trial court in overruling appellant's application for a change of venue. The application alleged that appellant could not have a fair and impartial trial in Phelps County because of the prejudice of the inhabitants of that county against him. It was supported by the affidavit of appellant and the joint affidavit of six other persons. The joint affidavit recites the names and addresses of the affiants and states that "they are creditable, disinterested citizens of the County of Phelps, State of Missouri, and reside in different localities of said county;" and it further states that "they have read the foregoing application for a change of venue in the cause" and that "the facts alleged therein are correct." The application was filed on the day the case was set for trial, and the prosecuting attorney testified, in opposition to the same, that it was filed without previous notice to him and about twenty minutes before it was presented to the court. The court overruled the application on the specified grounds that reasonable previous notice thereof had not been given to the prosecuting attorney, and that the joint affidavit did not show on its face that the affiants were residents of different neighborhoods in the county.

The statute, relating to applications for changes of venue in criminal cases, provides that "reasonable previous notice of such application shall in all cases be given to the prosecuting attorney." [Sec. 3973, Laws 1921, pp. 206, 207.] The manifest purpose of this provision is to give the prosecuting attorney time and opportunity to investigate the merits of the application and the affidavits filed in support of the same. It plainly appears that appellant did not comply with the statute in this particular, and the trial court would have been fully justified in overruling the application on this ground alone. [State v. Williams, 263 S.W. 195.]

While the joint affidavit, filed in support of this application recites that the affiants reside in different localities in the county and purports to give their addresses, it does not appear, on the face of the affidavit, that such addresses, or places of residence, are located "in different neighborhoods of the county," as required by the statute. Moreover, this court has held that, "as the affidavits of these five or more persons from different neighborhoods are to operate as the proof of prejudice, in lieu of the inquiry conducted by the court as heretofore, the affidavits should state facts, and not legal conclusions, so that the court can determine whether the witness is competent to express an opinion on the subject." [State v. Bradford, 285 S.W. l. c. 500.] And in the separate concurring opinion of White, J., in the Bradford case, it was further...