The State v. Pinto

• Citation: 279 S.W. 144,312 Mo. 99
• Decision Date: 22 December 1925
• Docket Number: 26646
• Parties: THE STATE v. JOHN PINTO, Appellant
• Court: United States State Supreme Court of Missouri

279 S.W. 144

312 Mo. 99

THE STATE v. JOHN PINTO, Appellant

No. 26646

Supreme Court of Missouri

December 22, 1925

Appeal from Macon Circuit Court; Hon. V. L. Drain, Judge.

Reversed and remanded.

Wm M. Van Cleve and Waldo Edwards for appellant.

(1) The instruction requested by the appellant in the nature of a demurrer to the State's evidence should have been given. Nowhere in all of this testimony was there any evidence that the defendant manufactured corn whiskey. There was no evidence that the defendant manufactured any intoxicating liquor of any kind. There was no evidence that the defendant had in his possession any intoxicating liquor. All of the witnesses testified that it was not intoxicating liquor. One charged with the commission of a crime cannot be convicted upon suspicious circumstances. State v. Elmer, 267 S.W. 934; State v. Smith, 261 S.W. 696; State v McIntyre, 256 S.W. 141; State v. Craft, 246 S.W. 930; State v. Weagley, 240 S.W. 822; State v. St. Clair, 247 S.W. 203; State v. Morrison, 240 S.W. 822; State v. Mackey, 267 S.W. 5; State v. Goodson, 299 Mo. 321. (2) The search warrant issued in this cause was illegal and void and any evidence obtained thereunder or by virtue thereof, should have been suppressed. The search warrant served was not the search warrant introduced in evidence. Someone changed the description of the premises after the search was made. Any evidence obtained by virtue of an illegal and void search warrant should be suppressed on motion therefor. State v. Locke, 302 Mo. 400; State v. Owens, 302 Mo. 348; State v Hyde, 297 Mo. 213. (3) The court should have defined the meaning of the term, "corn whiskey" in an instruction to the jury. The defendant was charged with the felonious manufacture of "corn whiskey" and the court should have told the jury the meaning of this term. It is elemental that where technical terms are used, or terms of particular meaning, they should be defined in instructions. (4) The court erred in giving to the jury plaintiff's Instruction 3. This instruction told the jury that the offense charged against the defendant was the manufacturing of intoxicating liquor illegally, and if they found the defendant guilty they should assess his punishment at that prescribed in the statute. The charge in this information was that the defendant manufactured corn whiskey feloniously and unlawfully, and this instruction was broader than the pleadings and was reversible error. (5) The court erred in giving to the jury plaintiff's Instruction 4. This instruction attempts to define the term "corn whiskey" as used in the information. It is not a proper definition of that term. Corn whiskey, as used in the statute, under which this prosecution was brought, means "moonshine" or "hootch" and means whiskey unlawfully manufactured. Under this attempted definition, it would not be necessary for the jury to find that the defendant even made any whiskey, and to convict the defendant, it was necessary that the jury should find that he unlawfully manufactured corn whiskey. State v. Brown, 262 S.W. 710; State v. Gatlin, 267 S.W. 797. (6) The court erred in failing to instruct the jury at the close of all of the evidence in the case that the defendant was not guilty. The most favorable construction that can be placed on the State's evidence is that the defendant was in the possession of mash. The statute does not prohibit the possession of mash. Possession of mash does not prove a charge of manufacturing whiskey. State v. Day, 245 S.W. 571; State v. Smith, 261 S.W. 696; State v. Keithley, 266 S.W. 739.

Robert W. Otto, Attorney-General, and James A. Potter, Special Assistant Attorney-General, for respondent.

(1) Where there is any evidence of defendant's guilt, the demurrer to the evidence is properly overruled. State v. Warner, 74 Mo. 83; State v. Pollard, 174 Mo. 607; State v. Hughes, 258 Mo. 272; State v. Belknap, 221 S.W. 45; State v. Jenkins, 225 S.W. 989; State v. Loness, 238 S.W. 113; State v. Jackson, 283 Mo. 24; State v. Hascall, 284 Mo. 616; State v. Mann, 217 S.W. 67. (2) Instructions 3, 4 and 5 given by the court were in proper form. State v. Brown, 262 S.W. 710; State v. Combs, 273 S.W. 1037. (3) Instructions 3, 4 and 5 were erroneous. State v. Gatlin, 267 S.W. 797.

OPINION

White, J.

In the Circuit Court of Macon County the defendant was charged with feloniously manufacturing one-half gallon of intoxicating liquor commonly known as "corn whiskey." On a trial before a jury, July 3, 1924, he was found guilty, and his punishment assessed at three months in the county jail. He appealed from the judgment thereupon rendered.

I. It is earnestly insisted by the appellant that a case was not made out, and his demurrer to the evidence should have been sustained.

The Sheriff of Macon County, William Banta, armed with what he thought was a search warrant, went to the premises of the defendant, Pinto, accompanied by Albert C. Nichols, Marshal of Macon, and found on the premises, about one hundred yards from the house, a barrel of what he called mash. It was in a wooden barrel and appeared to be corn meal mixed with water. This stuff had fermented. It was poured out and some of the liquid was preserved by the sheriff for evidence. A tub was turned over the barrel when he found it. The sheriff testified that he was raised on a farm, and he knew that mixtures like that were made for hogs, and that it ferments. All he found of the stuff was one barrel. He also found on the back porch of the house a sack of sugar and two sacks of corn chops. He returned later and took those articles. When the sheriff appeared on the premises and told the defendant he had a search warrant, the defendant told him to go ahead and search. He found no still on the premises, no worm, no coils, doubler or mash tubs, nor any utensils which the statute enumerates as used in the manufacture of intoxicating liquor, and which we may presume are for that purpose.

The sheriff was then asked if the liquid which he took from the barrel after emptying the mash was corn whiskey. His answer was, "No, sir." He was asked if it was capable of being drunk. He said he didn't know. He was asked if he found any corn whiskey of any kind on the place. He answered, "No, sir." He was asked if he found any place where a still had been operated. He answered, "No, sir." He was asked if he found any place where there had been fire and mash had been thrown out after the distillation, and he answered "No, sir."

Mr. Nichols, who accompanied the sheriff in making the search, described the barrel and said it had a paddle in it for stirring purposes. He said he was not familiar with the different processes by which the matured product of corn whiskey is derived. The defendant objected to the pouring out of his barrel of mash, and told the officers that he had prepared it for his hogs. Nichols was asked if the juice which was preserved by the officer was similar to "hootch." He said: "It has got a similarity to it." He was asked if it was intoxicating. A proper objection to the question, on the ground that the witness had not qualified either as an expert or by experimenting with the liquor, was overruled. He answered that he would not want to drink it unless he wanted to get intoxicated, but he would not say positively whether it was intoxicating or not. He said, "I can't state positively what it is." And then he said: "It is what they call corn whiskey." He further testified that there was something sweet in the bottom of the barrel that tasted like sugar sweet. He was asked if the stuff he took from the barrel was fit for drinking purposes. He said he didn't think it would be safe to drink it.

No doubt the defendant placed the corn meal in the barrel with water. The result was fermentation, and some of the liquid resulting was preserved and presented as evidence in the case. No one tasted it or subjected it to any other test. There was no evidence as to what different processes and utensils are employed in the manufacture of corn whiskey. If the statute correctly enumerates them, then there was no discovery by the officers of the necessary apparatus for manufacturing corn whiskey in the defendant's possession. The officers swore they made a thorough search of the premises and found no such apparatus. The wooden barrel was not a utensil for such purpose unless it was so used. [State v. Griffith, 311 Mo. 630.] The fermentation of the mash which the defendant said he prepared was nothing unusual. The defendant could not be guilty of manufacturing corn whiskey in violation of the statute unless he manufactured it unlawfully; that is, for an unlawful purpose. [Sec. 20, p. 242, Laws 1923.] If, as a matter of fact, he prepared mash for hog feed and it fermented, causing the distillation of alcohol, he would be guilty of no crime if his only purpose was to prepare hog feed. There was no evidence that the liquid which was found in the barrel was drawn off by defendant or attempted to be used in any way for any other purpose than what he said. So we think a case was not made out for the jury on the charge of manufacturing corn whiskey. The most that can be said is that possibly the defendant was experimenting in an attempt to violate the law, but did not know how, and circumstances justify only a mere suspicion of such unlawful purpose. We cannot convict a man of crime on suspicion, nor for merely harboring a criminal purpose.

II. Much of the defense turned upon the legality of the search warrant. The defendant moved to quash it and suppress the evidence discovered by it, and the motion was overruled. We think it unnecessary to pass upon that question.

Under the Act of 1923 the defendant was charged with the commission of a felony. It appears that...