State v. Swafford

• Decision Date: 18 December 1928
• Docket Number: No. 29025.,29025.
• Parties: STATE v. SWAFFORD.
• Court: Missouri Supreme Court

12 S.W.2d 442

STATE v. SWAFFORD.

No. 29025.

Supreme Court of Missouri, Division No. 2.

December 18, 1928.

Appeal from Circuit Court, Ozark County; Fred Stewart, Judge.

James Swafford was convicted for manufacture of hootch, moonshine, and corn whisky, and he appeals. Reversed and remanded.

George W. Thornberry, of Galena, for appellant.

Stratton Shartel, Atty. Gen., and David P. Janes, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was charged by information in the circuit court of Stone county with the manufacture of hootch, moonshine, corn whisky. He applied for and was granted a change of venue to Ozark county, where he was tried to a jury, found guilty, and his punishment assessed at a fine of $500.

Two deputy sheriffs of Stone county suspected that liquor was being manufactured in what was known as the Downs neighborhood in that county. They discovered, in a ravine on the premises of one W. R. Downs, a cooker and a barrel of mash. They watched these articles during the day without result. Returning to the scene the next morning they concealed themselves, and later in the day the appellant and one Dennis Downs approached, set up the apparatus, and built a fire under the cooker. While the cooking was in operation Downs made several trips to his father's (W. R. Downs) house near at hand and returned with water, fuel, and fruit jars, while appellant remained in attendance upon the still. After the officers had been watching them for some time the appellant and Downs disconnected the worm of the still, threw it into the top of a cedar tree near by, extinguished the fire, and went to Downs' father's barn, saddled their horses and rode away. Upon inspecting the articles the officers found the mash to be warm. No liquor was found. Downs was arrested that afternoon, and some months later the appellant was apprehended in Arkansas and brought back for trial. He denied his guilt. He admitted his presence at the home of Dennis Downs' father at the time charged in the information, but states that he went there to accompany Dennis Downs to a sale.

The only matters of exception preserved in such a manner as to authorize a review of the same are the refusal of the trial court to grant the appellant a continuance, the insufficiency of the evidence to sustain a conviction, and the refusal of an instruction requiring the jury to receive with great care and caution the testimony of detectives paid to investigate crime.

I. The application for a continuance conforms to the requirements of the statute, section 3997, R. S. 1919. While the testimony of several of the absent witnesses in regard to the reputation of the accused was cumulative the same cannot be said of the testimony which it is alleged other witnesses would, if present, give in regard to the whereabouts of the accused at the time of the commission of the offense, or, more briefly, in support of the defense of an alibi. While it is true that the defendant himself and the father of defendant's coindictee testified as to defendant's absence from the place of the crime at the time of its alleged commission, as this proof constituted his sole defense, the trial court in the exercise of a wise discretion and that the defendant might be given a fair trial should have afforded him an opportunity to corroborate his statements in that regard and those of the father of his coindictee. This, in my opinion, is a case not merely that the defendant might have been prejudiced in his rights by the denial of his application for a continuance, but that it was reasonably probable that if the absent witnesses had been present and had testified that a different result would have been reached by the jury. State v. Cochran, 147 Mo. 504, 516, 49 S. W. 558. The ruling of the trial court denying the continuance was, therefore, error.

II. A more serious contention is made in that the evidence of the state was insufficient to sustain the charge. The testimony of the officers who procured the evidence (Barnes and Hulse), more in detail than that contained in the foregoing statement, will disclose the testimony which was adduced to sustain the verdict.

Barnes testified in effect as follows:

"Q. What did Mr. Swafford do, if anything, about setting this apparatus up?

"A. He set it while the other party was with him, he set it up and the other party carried fruit jars and so forth and water from the house.

"Q. Go ahead and tell what happened; you saw them come and build the fire and fill this boiler up? Then what took place?

"A. For some cause or other after we had been there for some time — long enough to get the contents of that boiler good and hot, they took the lid off, disconnected the worm, threw it into the top of an old cedar, poured water on the fire, went back to the house and saddled up their horses and left. Whether they knew Mr. Hulse and I were there I couldn't say.

"Q. Did you see any sign of whisky or anything being made, was any furnace of any age there?

"A. It had been operated before, pretty freely, too.

"Q. Now how long before do you think it had been operated?

"A. From the time it took to sour the previous barrel. Also that there was quite a bit of fire built there and quite a lot of tramping around. The contents of the jar under the counsel table was the mash we got at the place and that apparatus there was found at the same place. And further, that there was no whisky found at the place."

Hulse's testimony in effect was as follows:

"Q. When did you find these articles?

"A. Thursday; the 19th, if I remember right, about 10:30. We found this still and equipment (referring to utensils near counsel table). As I remember, the cooker was in the place where the mash barrel was, the worm wasn't there as I remember but the cooker was, and the thing I remember particularly was the mash barrel full of mash, covered with a tub with an old torn sack over it. In addition the mash barrel was there and another barrel half full of water and some water in a tub.

"Q. Do you know what they did when they got there?

"A. They went down to the still, the two men did, and fired up. We could see smoke blowing out through the trees. We heard the rattling of the tubs. We stayed there til about 12:30 when they started a fire. We waited till about 1:30. Crawled out through the bushes and went to the still and they were gone. The cooker was there on the rocks, they had dashed some water on the fire and put it out; the liquid was hot, they had taken off the lid; taken the worm; they was not there and no whisky was there."

This testimony is not of such probative force as to sustain a charge for the manufacture of hootch, moonshine, or corn whisky. During the short time that the apparatus, referred to in the state's testimony, was in operation, the only result was to heat what was termed the "mash," and then to desist from further operation along that line. What this mash consisted of or whether it possessed any alcoholic content is not shown. Doubtless if the process had been continued and fermentation had followed alcohol would have been produced. With its production based upon a presumption we are not concerned, but with the facts. No instance will be found where a prosecution for the manufacture of hootch, moonshine, or corn whisky has been sustained in which the evidence was limited to the finding of apparatus that could be used in distillation and mash which had been or was being cooked. Proof of the production or presence of alcoholic liquor as a result of the use of the apparatus and the mash is necessary to sustain a conviction. State v. Pinto,...