State v. Talley

• Decision Date: 18 December 1928
• Docket Number: No. 28761.,28761.
• Citation: 12 S.W.2d 28
• Parties: STATE v. TALLEY.
• Court: Missouri Supreme Court

12 S.W.2d 28

STATE v. TALLEY.

No. 28761.

Supreme Court of Missouri, Division No. 2.

December 18, 1928.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

Noah Talley was convicted of unlawfully manufacturing hootch, moonshine, corn whisky, and he appeals. Affirmed.

Richeson & Richeson, of Potosi, for appellant.

Stratton Shartel, Atty. Gen., and J. D. Purteet, Asst. Atty. Gen., for the State.

HENWOOD, C.

By an information filed in the circuit court of Washingon county, appellant was charged, in the first count, with the unlawful manufacture of "hootch, moonshine, corn whisky," and, in the second count, with the unlawful use of a still in manufacturing for sale and transportation for sale "hootch, moonshine and corn whisky." Upon the trial of the case, the state, at the close of its evidence, dismissed as to the second count, and the jury found appellant guilty under the first count and assessed his punishment at a fine of $500. From the judgment and sentence based on the verdict, he has perfected this appeal.

The state's evidence shows that, on December 10, 1926, the sheriff and one of his deputies went to appellant's home in Washington county with a search warrant and found "a still and some whisky and some mash." Otherwise explained, a copper can and coil were found on the first floor of appellant's residence, in a closet "under the steps that lead upstairs." Some of the liquor was found in a keg and in a jar in the closet with the copper can and coil, and more liquor was found "in a closet in the kitchen." A 50-gallon barrel "about two-thirds full of mash" was found upstairs "setting right close to the stove pipe." All of the articles except the "mash" were produced at the trial and identified by the sheriff. He said that the copper can and coil were not "on a stove," nor "in operation," when he found them, but such articles "could be used" and "are used" in manufacturing whisky, and that the liquor in the keg and the jar was "hootch or moonshine." He also said that the material in the barrel was "corn sugar," that "it was all in a liquid form," and that it "could be used for the manufacture of liquor." It further appears from the sheriff's testimony that appellant was not at home at the time of the search, though his wife and children were there, and that after the search, when the officers met appellant on the road about a mile from his home, appellant said: "Well, I guess you have been up to my house, as it looks like you have got the outfit." And the sheriff said: "Yes, I had this search warrant for you, Noah." Appellant then said: "It looks like they have got me, I will be up in the morning and bring my bondsmen." On account of the sickness of one of appellant's children, the sheriff consented to this arrangement. Dr. George Cresswell, a local physician, analyzed two samples of the liquor, one of which, he testified, tested "about fifty per cent. alcohol by volume," and the other "twenty-five per cent. or a little better than that, by volume."

No evidence was offered by the appellant.

I. The information is attacked on the ground that two separate and distinct felonies are charged in the first and second counts thereof: First, the unlawful manufacture of "hootch, moonshine, corn whisky," as defined by section 21, Laws of 1923, p. 242; and, second, the unlawful use of a still in manufacturing "hootch, moonshine, and corn whisky" for sale and transportation for sale, as defined by section 2, Laws of 1923, p. 237.

"The legal test of permitted joinder is not whether the offenses charged in different counts of a single information as having been committed in different ways are, or are not, defined and denounced by different sections of the criminal code. The test is: Whether such offenses arose out of the same transaction, and are so far cognate as that an acquittal or a conviction of one would be a bar to a trial for the other." State v. Young, 266 Mo. 723, 731, 183 S. W. 305, 307.

Applying this well-established rule of criminal pleading, it is apparent at once that appellant's motion to quash the information on the ground above mentioned was properly overruled, as the two offenses charged necessarily arose out of the same transaction, and are so akin that a conviction or acquittal on one would be a bar to a prosecution for the other. We were confronted with this same question in the recent case of State v. Nerini (Mo. Sup.) 6 S.W.(2d) 853, 854; that is, a similar attack was made on the information, which joined in separate counts...