The State v. Gilden

• Decision Date: 20 December 1926
• Docket Number: 27423
• Citation: 289 S.W. 821,316 Mo. 252
• Parties: The State v. Jim and Dave Gilden, Appellants
• Court: Missouri Supreme Court

289 S.W. 821

316 Mo. 252

The State v. Jim and Dave Gilden, Appellants

No. 27423

Supreme Court of Missouri

December 20, 1926

Appeal from Douglas Circuit Court; Hon. Fred Stewart Judge.

Affirmed.

Moore Farrar & Moore, for appellants.

(1) Defendant Jim Gilden had nothing to do with the manufacture of corn whiskey, and the only thing he did was to conceal the fact that his brother was committing a felony and to give him aid to avoid conviction and punishment. If so he was guilty of no offense. R. S. 1919, art. 9, chap. 24; State v Modlin, 197 Mo. 376. (2) Instruction 4 is not the law, and makes no limitation on the relation of the parties, the age or mental capacity of the participant, but simply says "anyone" that assists in the manufacture of corn whiskey is guilty even though they receive nothing or have no financial interest therein. Suppose the co-defendant was a wife or minor child, then such instruction would not be proper. Suppose the co-defendant was non compos mentis, then such declaration would be improper, and as a general proposition such instruction is too broad and without proper limitation. (3) The search warrant and all evidence had thereunder is a nullity. State v. Owens, 302 Mo. 365; State v. Lock, 259 S.W. 116. Nor does the case lately decided, State v. Hall, 279 S.W. 102, hold contra to these authorities.

North T. Gentry, Attorney-General, and H. O. Harrawood, Special Assistant Attorney-General, for respondent.

(1) The defendants' motion to suppress the evidence obtained under the search warrant was properly overruled. State v. Cobb, 273 S.W. 736; State v. Perry, 267 S.W. 831. (2) Instruction 4 is not fatal. State v. Williams, 274 S.W. 434.

OPINION

Walker, P. J.

The defendants were jointly charged by information in the Circuit Court of Taney County with the manufacture of hootch, moonshine or corn whiskey. Upon a trial to a jury, on a change of venue to the Douglas County Circuit Court, they were convicted and each sentenced to two years imprisonment in the penitentiary. From this judgment they have appealed.

The defendants were bachelor brothers, living alone on premises in Taney County, let to them by a non-resident owner. In July, 1925, the Sheriff of Taney County, armed with a search warrant, went to the premises occupied by the defendants and after searching the dwelling for liquor and finding none they saw the defendant Jim Gilden coming up from behind a bank about one hundred and twenty-five yards from the house. They went down to the place from which he came and found a still in operation, and about fourteen barrels of mash and several fruit jars containing moonshine or corn whiskey. In a barn near the house they found a barrel containing fifty or sixty gallons and a keg containing about ten gallons of whiskey. In another outbuilding was found a large number of empty sugar sacks, and on the back porch of the dwelling there were three sacks of sugar. They arrested the defendant Jim Gilden, who admitted his knowledge of the manufacture of the liquor, but denied that he had any connection with it, except to cut the wood and haul the water used by his brother. Dave Gilden, the other defendant, came up from behind the bank from which Jim had come while the search was being made. He declared that the still belonged to him and admitted that he had been manufacturing moonshine whiskey, and Jim repeated his denial of participation in the manufacture, saying: "I aint got nothin to do with this still. It aint mine. I chop the wood for Dave and haul in the stuff and he pays me for it."

The testimony of the defendants summarized is, that Dave Gilden built, owned and operated the still, and that his brother Jim had no connection with the same. The latter, in testifying, reiterated his denial of any complicity in the offense charged; that although he knew that the still had been built on their premises and had been in operation for a long time he had nothing to do with it and that he protested against its use by his brother.

I. The validity of the warrant under which the search of the premises of the defendant was made is assailed. The statute (Sec. 25, Laws 1923, p. 244), under which the warrant was issued, requires, among other things, that the prosecuting attorney may file a petition verified by his oath before a justice of the peace for a search warrant (as was done in this case), setting forth the facts on which it is based describing the place to be searched, the thing or things to be seized; the justice before whom the same is filed, either from the facts set forth in the petition or from evidence heard thereon, that there is probable cause to believe that intoxicating liquor is being unlawfully manufactured, sold, stored or kept on the premises described in the petition or that any of the utensils or instrumentalities named in the statute are being used or kept for the manufacture of intoxicating liquors, shall cause to be issued a search warrant, which shall substantially recite the facts set forth in the petition. This is followed by a declaration of the duties devolving upon the officer to whom the writ has...