The State v. Ayres

• Decision Date: 28 May 1926
• Docket Number: 26969
• Citation: 285 S.W. 997,314 Mo. 574
• Parties: THE STATE v. ALLEN AYRES, Appellant
• Court: Missouri Supreme Court

285 S.W. 997

314 Mo. 574

THE STATE v. ALLEN AYRES, Appellant

No. 26969

Supreme Court of Missouri

May 28, 1926

Appeal from Livingston Circuit Court; Hon. Arch B. Davis Judge.

Affirmed.

John H. Taylor, O. O. Mettle, L. W. Reed and Thos. H. Hicklin for appellant.

(1) The court committed error in refusing to give the peremptory instruction requested by the defendant directing the jury to find the defendant not guilty at the close of all the evidence. There is not a scintilla of evidence in the record showing the defendant to be guilty of the offense with which he stands charged. (2) Error was committed when the prosecuting attorney asked and was permitted to ask the defendant, if on a certain occasion the defendant had "asked me what my attitude was going to be were I elected prosecuting attorney, and I asked you what you meant and you said, 'You know that Willard and I are running a still out here, that we can sell sixty gallons of whiskey a week and we will pay you $ 500 to let us know when we are to quit, that we don't want to get caught' or words to that effect." That was an inquiry from the defendant on cross-examination about a matter which he had not testified to in chief and was not permissible. Sec. 4036, R. S. 1909; State v. Bulla, 89 Mo. 598. (3) The only possible portion of the above-quoted question which could possibly justify the court in permitting it to be answered is that part of the question in which the witness was asked as to whether or not he had stated, "You know that Willard and I are still running a still out here." When the prosecuting attorney knew that no such conversation had been had, and he knowingly and deliberately injected that part of the question into the case with a deliberate purpose of prejudicing the jury, although he testified on cross-examination that he "didn't say anything about a still." This conduct of the prosecuting attorney in the trial of this case not only justifies, but requires a reversal of this judgment. State v. Burns, 286 Mo 671. (4) There was misconduct on the part of the prosecuting attorney in stating: "There was one matter Mr. Ayres denied and that was the still. I want to prove by Mr. Selby that this was the one he was convicted of." And there was error on the part of the court in failing to repremand the prosecuting attorney. (5) The evidence does no more than create a suspicion that defendant was guilty as charged. A conviction will not be sustained under such circumstances, however strong the suspicious circumstances might be. State v. Scott, 177 Mo. 673; State v. Ballard, 104 Mo. 637; State v. Pinto, 579 S.W. 146; State v. Woodson, 175 Mo.App. 393; State v. Ridge, 275 S.W. 60; State v. Elmer, 267 S.W. 934; State v. Pope, 296 S.W. 413; State v. Dildine, 269 S.W. 654.

North T. Gentry, Attorney-General, and Harry L. Thomas and A. B. Lovan, Special Assistant Attorneys-General, for respondent.

(1) The evidence was sufficient, the circumstances of defendant's presence at the scene of the crime destroying every reasonable possibility of his innocence. State v. Bennett, 270 S.W. 295; State v. Gatlin, 267 S.W. 797. (2) There is no merit in appellant's assignments of error which relate to the cross-examination of the defendant as to his conversation with a witness with reference to his prior operation of a still. The appellant complains that it finally developed in the testimony that the defendant did not refer to a still in his conversation. But according to the testimony of the witness, the defendant did say, "You know what Willard and I are doing? We are selling sixty gallons of liquor a week, and there will be $ 500 in it for you if you are elected and will let us go on and give us notice when to get out." The defendant on direct examination had denied that he had had anything whatever to do with the operation of the still that was located in the house where the defendant was found and arrested. Therefore it was competent to cross-examine him as to what he might have said with reference to manufacturing liquor. The fact that he did not mention a still is immaterial, because he went on to say in the conversation proven that he could sell sixty gallons of liquor a week. State v. Edelen, 231 S.W. 585; State v. Lemon, 263 S.W. 188. (3) Evidence that the defendant said nothing in explanation of the ownership of the stills or of his presence at the stills at the time of his arrest was properly admitted in view of his later denial of participation in the crime. His explanation from the witness stand had all the earmarks of being an afterthought.

OPINION

White, J.

This is a companion to the case of State v. Milstead, 315 Mo. 1. Defendant was convicted January 9, 1925, in the Circuit Court of Livingston County charged with manufacturing intoxicating liquor -- corn whiskey. The facts fully stated in the case of State v. Milstead are almost the same as in this case. It is necessary only to mention some of them here.

About eight o'clock P. M., November 15, 1924, Dean Leopard, prosecuting attorney; Frank Gildow, sheriff, and H. B. Dilley, deputy sheriff, with two other men, went after dark to a farm near Gallatin in Daviess County, occupied by Harry Noah. They approached and concealed themselves near a two-story building fromerly used as a dwelling. Presently a car drove up and they recognized the voice of Willard Milstead speaking to Mrs. Harry Noah, who came to the door of the building. Milstead said: "Tell those fellows to come out and help carry in this stuff." Then further: "They brought in old Bill Cummings and two stills from Pattonsburg today." Someone came out and a sack was carried into the house. Afterwards sacks were discovered in the house, one of them containing corn chops. The sheriff and his companions broke into the house and found a large quantity of mash, corn whiskey and equipment for its manufacture. Several gasoline stoves were in operation. Some of this stuff was found on the first floor and some on the second floor of the house. An opening was discovered in the ceiling up stairs, where the plastering had been knocked off. The deputy sheriff climbed up, found Ayres hiding in the attic, and brought him down. Ayres denied that Milstead was there. Later the sheriff found Milstead hiding in the same attic.

Defendant was seen a number of times within two months before the raid, making visits to the Noah place. Some of the witnesses describe those visits by his yellow car which was frequently seen there, though they did not know who drove the car. The Noah place was on a private road which led only there, so that anyone passing on that road was known to be going to the Noah place.

The defendant testified in his own behalf that he was a buyer of walnut logs; that he drove from Gallatin to the Noah place with Milstead the night he was arrested. On cross-examination it was shown that he had been convicted of the possession of implements used for the manufacture of intoxicating liquor. The State offered evidence tending to show that he attempted improperly to influence the attitude of the former prosecuting attorney in relation to his duty in connection with the unlawful manufacture of liquor. Evidence was offered to show that the defendant possessed a good reputation for truth and veracity and for morality. The alleged errors on which the defendant seeks a reversal as they appeared in the motion for new trial are: Failure of evidence to make out a case against him; the admission of incompetent evidence; the exclusion of proper testimony offered by the defendant, and errors in the giving of instructions.

I. It is first complained that the court erred in allowing the defendant to be examined upon matters not testified to in chief.

Defendant Ayres took the stand, and in chief, after stating that he went to the Noah farm on the night of the arrest, with Milstead, was asked if he owned any of the paraphernalia described in the evidence and used in the manufacture of intoxicating liquor at the Noah farm, and said that he did not. He said he had never operated the stills there at any time, nor had anything to do with them; that he had never furnished any of the materials that went into the manufacture of intoxicating liquors; that he had never let Mr. Noah or anybody have any money. On cross-examination he was asked this question by Mr. Gillihan:

"Q. I will ask you, Mr. Ayres, if on the west side of the Square at Gallatin, just prior to the election, if you didn't stop me there where the buildings were burned down, and ask me what my attitude was going to be if I was elected prosecuting attorney, and I asked you what you meant, and you said, 'You know that Willard and I are running a still out here, that we can sell sixty gallons of whiskey a week, and we will pay you five hundred dollars to let us know when we are to quit, that we don't want to get caught,' or words to that effect?"

He answered evasively, admitting a conversation, but denying that anything was said about $ 500 or a distill.

In rebuttal Mr. L. B. Gillihan, former prosecuting attorney, testified to a conversation with the defendant he had had just before the election of 1924. The conversation he related was as follows:

"A. He met me on the west side of the Square there where some buildings had been burned down, and he asked me, he says 'Gillihan, what is going to be your attitude on this liquor question if you are elected?' I says, 'What do you mean, Hairpin?' We call him 'Hairpin,' that is his nickname, 'Hairpin.' 'Well,' he says, 'you know what Willard and I are doing.' 'And,' he said, 'we can sell sixty gallons of liquor a week, and we will promise you that there will not be a drop of it sold in Daviess County, and there will be five hundred dollars in it for you if you are...