State v. Williams

• Decision Date: 01 December 1924
• Docket Number: No. 15150.,15150.
• Parties: STATE v. WILLIAMS.
• Court: Missouri Court of Appeals

266 S.W. 484

STATE v. WILLIAMS.

No. 15150.

Kansas City Court of Appeals. Missouri.

December 1, 1924.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

"Not to be officially published."

Clarence Williams was convicted on three counts, charging liquor offenses, and he appeals. Reversed as to third count, and reversed and remanded as to first and second counts.

Lionel Davis, of Fayette, for appellant.

Jasper Thompson, of Fayette, for the State.

BLAND, J.

Defendant was charged in three counts with the violation of the prohibitory law. He was found guilty on all three counts. His punishment on each count was assessed at $100 and imprisonment for four months in the county jail.

The first count of the information charges defendant with the possession of a still, doubler, and worm, used and fit for use in the production of intoxicating liquor; the second count charges him with the manufacture of intoxicating liquor, and the third with maintaining a public and common nuisance by keeping "a still, doubler, worm, fermenting tub, and vessel, used and fit for use in the manufacture of intoxicating liquors."

The facts show that defendant is a negro living in Fayette; that Creed Talbot and Zeddie Ashcraft, two other negroes, lived together, though not married, on a farm in Howard county; that on June 4, 1922, the sheriff and his deputy visited the premises of Talbot and Ashcraft, and found in their house a barrel holding 20 or 30 gallons full of mash, also a boiler, worm, and a jug. The witness Talbot testified that the defendant in company with another brought a "still" to Talbot's house on Saturday night, between 9 and 10 o'clock; that defendant, Talbot, and another individual, referred to as "Duke," furnished the yeast, sugar, corn, and potatoes with which to make the mash. Talbot hauled these ingredients from Fayette, and under the direction of defendant placed them in the 30-gallon barrel, in order to sour them. Defendant told Talbot that the "corn and stuff" would come to the top, and when it got through working it would go back to the bottom, and would then be ready "to run off." Talbot went to town on Friday, and told defendant that the mash was ready to run off, and defendant said that he would come out the next morning "and fix it." Defendant came out Saturday morning and "ran it off," and made a little over a gallon of whisky. The witness drank some of it, and testified that "it would make you drunk, if you drank enough of it." The whisky that was run off was divided. On cross-examination he testified that he was on the place plowing when defendant was there and was not in the house, that he knew defendant was there, as he saw defendant's horse tied in the yard. Talbot was arrested, and pleaded guilty, and served a sentence on the charge of possessing the liquor.

Zeddie Ashcraft testified that she was not at home when the still was brought there; that the mash was "fixed" by Talbot, and when it was fixed and soured defendant was there and "put it in a great long thing like a wash kettle; * * * put it on a stove, and it commenced to boil and run it out of a little spiral, and put a glass under it to catch the stuff and it run out clear, * * * a little over a gallon." She testified that she drank some of it, and "it made me feel pretty good"; that she tasted it and "it was whisky." She testified:

That it had a great long coil, something like' a rope and brass-looking thing, and one part was in a keg and the other part was hooked onto the boiler, and the coil was down in the water.

"Q. Did one end of this coil come out of that keg? A. Yes; that is where the whisky come out at.

"Q. Where did he run this whisky out in? A. Out in a glass.

"Q. Then would he pour it into a jug? A. Yes, sir."

The Ashcraft woman had pleaded guilty to having the still in the house. The wash boiler and coil were exhibited to the jury. Talbot testified that in making the whisky the coil would be attached to the wash boiler that the boiler had a rim to make it air tight, and to keep the top from blowing off. Defendant disclaimed any knowledge of the still or the making of the liquor.

The search of the Talbot and Ashcraft house was made on a warrant issued by the clerk of the circuit court without any order of the court. A day before the trial defendant filed a motion to suppress the evidence obtained thereunder on account of this fact, and also objected to the evidence being admitted, and now insists that the court erred in overruling his motion and in admitting such evidence. We think there is no merit in the contention. Defendant makes no claim that he had any interest in the premises searched. One may not avail himself of a violation of the constitutional guaranty against unreasonable search and seizure as to another, where no constitutional right of his own has been violated. Remus v. United States (C. C. A.) 291 F. 501; Haywood v. United States (C. C. A.) 268 F. 795, 803; Chicco v. United States (C. C. A.) 284 F. 434; McCarty v. Commonwealth, 200 Ky. 287, 254 S. W. 887; Keith v. Commonwealth, 197 Ky. 362, 247 S. W. 42. One may not raise a constitutional question when his personal constitutional rights have not been invaded. Stouffer v. Crawford (Mo. Sup.) 248 S. W. 583, 585; In re Tartar, 278 Mo. 356, 364, 213 S. W. 94; State v. Baskowitz, 250 Mo. 82, 89, 156 S. W. 945, Ann. Cas. 1915A, 477; Ordelheide v. Modern Brotherhood of America, 226 Mo. 203, 206, 125 S. W. 1105, 32 L. R. A. (N. S.) 965.

It is insisted that the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence as to the second count of the information, for the reason that it is not shown that the liquid that was made by the defendant contained the percentage of alcohol mentioned in the statute, to wit, one-half of one per cent. There is no merit in this contention. The evidence was that what was made was "whisky" and that it made witness Ashcraft "feel pretty good." State v. Kiely (Mo. App.) 255 S. W. 343; State v. McIntyre (Mo. App.) 256 S. W. 141; State v. Daugherty (Mo. App.) 250 S. W. 957.

It is also insisted that the court erred in refusing to give defendant's peremptory instruction to find for him on the first count of the information, for the reason that the coil and boiler introduced in evidence did not constitute a still, boiler, worm, etc., within the meaning of the statute. The evidence shows that the wash boiler was connected up with the coil or spiral, and that the coil was run into a keg, and liquid came out of the coil into a glass; that the boiler had a rim around it to make it air tight and to keep the top from blowing off, and that the liquid was whisky. This may have been a primitive still and worm; nevertheless it was such. State v. Pope, 210 Mo. App. 558, 243 S. W. 253.

The facts in this case are much stronger than those in the case of State v. Hyde, 297 Mo. 213, 248 S. W. 920. cited by the defendant. In that case it was held that ordinary lard cans did not constitute mash tubs within the meaning of the statute, even though the evidence showed that defendant made corn whisky by the use of corn chops which were soaked, soured, and fermented in these cans. In the case at bar the apparatus claimed to be a still was...