State v. Willoby

• Decision Date: 20 December 1930
• Docket Number: 30615
• Citation: 34 S.W.2d 7
• Parties: STATE v. WILLOBY
• Court: Missouri Supreme Court

34 S.W.2d 7

STATE v. WILLOBY

No. 30615

Supreme Court of Missouri, Second Division

December 20, 1930

Verne Lacy, of St. Louis, and J. W. Hartman, for appellant.

Stratton Shartel, Atty. Gen., and Edw. G. Robison, Asst. Atty. Gen for the State.

OPINION

DAVIS C.

In an information filed in the circuit court of Vernon county by the prosecuting attorney, defendant was charged with transporting, on January -- , 1929, hootch, moonshine, corn whisky. On change of venue to Cedar county, the jury found her guilty of transportation, and assessed her punishment at three years in the penitentiary. Defendant appealed from the judgment entered on the verdict.

The information comprised two counts, transportation and possession of hootch, moonshine, corn whisky, respectively. On motion to quash, the state dismissed as to the count on possession, and the court overruled the motion.

Defendant was not represented by counsel in this court, nor was a brief filed in her behalf. She filed a motion to suppress the evidence; but as we have concluded that the evidence adduced was insufficient to sustain the conviction, we need not notice further the motion or the evidence supporting it.

The evidence on the trial in behalf of the state warrants the finding that Mrs. Nora Wilson resided on a ten-acre tract of land two miles west of the city of Nevada. Located thereon was a four-room house and a smoke-house. During January 1929, defendant visited Mrs. Wilson at her home and rented from her the smoke-house. The next day witness saw defendant go to the smoke-house carrying a sack, but witness did not know what, if anything, was in it. The night the sheriff was there, defendant told the witness that some fellow ordered a gallon.

Oliver Wilson testified that defendant came to his mother's home in a car carrying a bottle that looked like it contained water, and she carried it to the smoke-house. The bottle was not similar to the jugs introduced in evidence.

Neighbors testified that they entered the smoke-house at the solicitation of their wives and there saw four five-gallon jugs, which they say smelled like they contained corn whisky. The jugs were in sacks. One witness said he took the corks from two of the jugs and smelled and tasted of the cork, and in his judgment it was whisky. The witnesses entered the smoke-house without permission.

The sheriff testified that without a search warrant he entered the smoke-house and found four jugs of hootch. Subsequent to her arrest by the sheriff, defendant signed a statement reading:

'February 5, 1929.

'I make this statement voluntarily and without any promise.

'On the 10th day of January, 1929, T. H. Willoughby's automobile was in the garage on East Cherry Street. I received a letter to move the car. I went to the garage about ten o'clock in the morning. There were four five-gallon jugs of whisky in the car. I drove the car from the garage to Mrs. Wilson's place west of Nevada. Roy Kiethley went with me. He took the whiskey out of the car and put it in the smoke-house.

'The letter I received told me to go and get the car. That there was some stuff to take out there and put in the smoke-house.

'When I heard there was a warrant for me I left. I went to Kansas City.

'Ten dollars was in the envelope which I received with the letter. The letter was not written by T. H. Willoughby. I did not know whose stuff it was, and am most certain it was not Mr. Willoughby's.'

The sheriff testified that he gave a portion of the contents of a jug to Richard G. Taylor for analyzation. Mr. Taylor, a chemist, stated that he made a chemical analysis of the intoxicating liquor given him by the sheriff and that it analyzed 48.8 per cent. by volume. In answer to the question, 'What is that stuff?' he said, 'I would call it hootch.'

The evidence further shows that, on January 6, 1929, the day defendant rented the smoke-house, Mrs. Wilson saw her drive there. She observed the defendant going from the car to the smoke-house carrying an ordinary sack.

I. Defendant contends that the trial court erred in refusing to instruct the jury to acquit her. We are unable to see in the evidence any proof of the illegal transportation of hootch moonshine, corn whisky, other than the extrajudicial confession of defendant made while in jail. Before a defendant may be found guilty of a charge, the proof...