The State v. Milstead
| Decision Date | 28 May 1926 |
| Docket Number | 26941 |
| Citation | 285 S.W. 429,315 Mo. 1 |
| Parties | The State v. Willard Milstead, Appellant |
| Court | Missouri Supreme Court |
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.
There is no evidence in this case that can be held to do more than create a mere suspicion that defendant was guilty as charged. This court has repeatedly held that it will not sustain a conviction under such circumstances, however strong the suspicious circumstances might be. State v. Scott, 177 Mo. 673; State v. Ballard, 104 Mo. 637; State v. Elmer, 267 S.W. 954. See also, State v Woodson, 175 Mo.App. 393; State v. Ridge, 275 S.W. 60.
North T. Gentry, Attorney-General, and Harry L. Thomas and A. B. Lovan , Special Assistant Attorneys-General, for respondent.
(1) The evidence is sufficient. The circumstances of defendant's presence at the scene of the crime, his purchase of large amounts of sugar immediately prior to his detection, and his actions upon arriving at the house on the night of his arrest, are substantial and convincing evidence of guilt. State v. Bennett, 270 S.W. 297; State v. Gatlin, 267 S.W. 797; State v. Cardwell, 279 S.W. 99. (2) There was no error in permitting the jury to separate. The affidavits filed by the defendant indicate that he and all of his counsel were present in the court room and sat without objection when the separation was permitted. The affidavits do not even allege prejudice by reason of the separation and this alleged error is not before the court for review. Appellant has failed to aver or to show affirmatively that both he and his counsel were ignorant of the misconduct charged until after the trial. State v. Cooper, 271 S.W. 471; State v. Robinson, 117 Mo. 649; State v. Barrington, 198 Mo. 23; State v. Richardson, 194 Mo. 326; State v. Tucker, 232 Mo. 1.
Information was filed in the Circuit Court of Daviess County, charging defendant Willard Milstead, Allen Ayers and Harry Noah, with unlawful manufacture of hootch, moonshine, corn whiskey. Noah absconded. Change of venue was awarded to Livingston County, where severance was granted and Milstead tried, January 8, 1925. The jury returned a verdict finding him guilty as charged, and assessed his punishment at two years' imprisonment in the State Penitentiary. From that judgment he appealed.
I. Appellant assigns error to the action of the trial court in overruling his demurrer to the evidence. Since that is the particular point relied upon for reversal, it is necessary to set out the evidence at some length.
In November, 1924, Harry Noah, with his wife and two children, lived as tenant on a farm known as the Chester Kingsley farm, near Gallatin, in Daviess County. On that farm was an old two-story building which had been used as a dwelling, but was not occupied as such at the time of the alleged offense. It was near a new house in which Noah lived. About eight o'clock P. M., November 15, 1924, five men, Dean Leopard, Prosecuting Attorney; Frank Gildow, Sheriff; H. B. Dilley, Deputy Sheriff of Daviess County; George W. Sands, and Fred Smith, drove to a point near the old house. They secretly approached the place and, while they waited in concealment, a car was driven up to the front of the house by the defendant, Willard Milstead, whose voice they recognized. There was a light in the old house. Mrs. Harry Noah came to the door and Milstead called to her: "Tell those fellows to come out and help carry in this stuff." Milstead then said: "They brought in old Bill Cummings and two stills from Pattonsburg, to-day." Someone came out and either that person or Milstead carried a sack into the house. Dilley testified that it looked like a hundred pound sack. Mrs. Noah immediately went home. An unbroken sack of chops was later found in the old house. Some of the party testified that they got a position from where they could see into the old house, and saw three men there. The sheriff and his party went to the door and knocked. Harry Noah opened the door, saw who it was, and immediately slammed the door, according to Dilley, remaining himself on the outside. The door was fastened by a spring lock and Noah said he could not get it open. At the sheriff's direction Dilley kicked in the door. Only Noah was present. In searching the lower floor and the upstairs they found twenty-one barrels of mash, about one hundred one-gallon jugs, several gasoline burners supplied by pressure tanks, about seven gallons of corn whiskey, about fifty empty sugar and burlap sacks, utensils and equipment used in the distillation of corn whiskey, indicating the manufacture of corn whiskey on a large scale. In fact, it is not denied that the corpus delicti was sufficiently established. It is only claimed that Milstead had nothing to do with the manufacture.
The sheriff's party were unable to find the defendant on the first or second floor, but upstairs in the ceiling the plastering was knocked off and a hole was made into the attic under the roof. There was no ladder to approach that place, but Deputy Dilley with assistance climbed up there, found Ayres and brought him down. Ayres said that Milstead was not there. After further search Dilley made a second trip into the attic, found Milstead hid under the rafters and brought him down.
It was shown by a witness living in the neighborhood that Milstead had quite recently made a number of trips, five or six, to that place, which set back and was approached by a private road, so that the neighbor knew that anyone going along that private road would have no other objective than the Noah place. It was further shown that Milstead, a short time before the arrest, had bought 1700 pounds of supar from three different merchants in Gallatin.
Mrs Noah, a witness for defendant, testified that her husband and one Ossie Mills owned the still and equipment, and that Ayres and Milstead had no interest in it. Her evidence is quite indefinite. Evidently she attempted to conceal what she did know about the business except the connection of her husband with it. She seemed afraid that she might be accused. Apparently she did not know enough about it to know whether Milstead had anything to do with the operations. It was shown that Harry Noah was quite poor, and not able to finance operations on the scale on which the manufacture was conducted. Mrs. Noah said she did not know where Noah got the chops, sugar or yeast used. Milstead did not take the stand. His counsel in his opening statement said that Milstead was there for the purpose of buying liquor and had no interest in its manufacture, and in the argument here it is said that he hid away in the attic because he...
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