The State v. Sandoe

• Decision Date: 20 December 1926
• Docket Number: 27052
• Citation: 289 S.W. 890,316 Mo. 55
• Parties: The State v. George Sandoe, Appellant
• Court: Missouri Supreme Court

289 S.W. 890

316 Mo. 55

The State v. George Sandoe, Appellant

No. 27052

Supreme Court of Missouri

December 20, 1926

Appeal from McDonald Circuit Court; Hon. Charles L. Henson Judge.

Affirmed.

O. R Puckett for appellant.

(1) The evidence, taken altogether, such as was competent and admissible, is only sufficient to support a conviction of this defendant for the crime of unlawfully possessing intoxicating liquor and of possessing a still fit for use in the production of intoxicating liquor. (a) Unless the written statement of Gillispie, made out of court, was admissible there was not sufficient evidence to submit the case to the jury, for there was no other evidence given nor offered by the State proving or tending to prove when, if ever, the offense charged was committed, or to show that any such offense was committed by this defendant within the three-year period, or that if committed, it was committed in McDonald County, or that it was corn whiskey, hootch or moonshine. Had Gillispie been offered as a witness to testify to such facts in court, the trial court would have had to exclude the testimony on the ground that he was a co-defendant and therefore an incompetent witness against defendant. The State will certainly not be permitted to do indirectly that which it is prohibited by law from doing directly. Secs. 4035 4036, R. S. 1919; State v. Reppley, 278 Mo. 333; State v. Chyo Chiagk, 92 Mo. 395. (b) The injection of that evidence, the Gillispie statement, in the manner in which it was produced, wrongfully deprived this defendant of his right to an instruction that the testimony of an accomplice should be received with great caution, the omission of which would have been reversible error. State v. Williams, 266 S.W. 284. (c) Had this defendant himself made such a statement, it would have been an extra-judicial confession, made in the absence of any independent proof of the principal fact, and, so far as any other proof showed, may have been a lie. It certainly could not have been taken and treated as a plea of guilty in open court, there being no evidence, independent of the statement, that defendant made any whiskey or, if he did, that it was made in McDonald County, or if in McDonald County, within the three-year period. Defendant's own statement, made out of court, did not admit that he made any whiskey, nor that it was made in McDonald County, nor within the three-year period, only that the whiskey and the still belonged to him. (d) Confession of guilt must be supported by independent proof of the corpus delicti, in order to support a conviction. Suspicion and conjecture cannot take the place of testimony. The state will surely concede this without further citation than State v. Young, 237 Mo. 170. (2) Should it be considered that there was sufficient circumstantial evidence from which the jury could infer that the whiskey was made by defendant in McDonald County within the three-year period, it was mandatory upon the trial court to give an instruction on circumstantial evidence. That the defendant made the whiskey just across the line in Arkansas and had but recently moved and set up his still in McDonald County preparatory to resuming operations, is just as consistent with the circumstantial evidence as is an inference that the whiskey was made in McDonald County and, if as consistent, it would have been the duty of the jury to acquit of the charge contained in the information. State v. Swarens, 241 S.W. 940. (3) Whether requested or not, the court must instruct the jury in writing upon all questions necessary for their information in giving their verdict and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial. Sec. 4025, R. S. 1919; State v. Cole, 263 S.W. 207; State v. Harris, 267 S.W. 803; State v. Slusher, 256 S.W. 817; State v. Conner, 252 S.W. 714. That this point was raised in a motion for a new trial is sufficient to bring it before this court. State v. Conway, 241 Mo. 273.

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

(1) The evidence was sufficient to take the case to the jury. State v. Bennett, 270 S.W. 295; State v. Gatlin, 267 S.W. 799; State v. Cardwell, 279 S.W. 99; State v. Cockrum, 278 S.W. 700. (2) The corpus delicti was proven by substantial evidence. Defendant's statements were sufficient to constitute extra-judicial confession, and there was sufficient other evidence to make such confession admissible. Full proof of the body of the crime independent of the confession is not required; but on the contrary what may seem to be slight corroborating facts have been held to be sufficient. State v. Keltner, 278 S.W. 825; State v. McCorn, 237 Mo. 246; State v. Mullinix, 301 Mo. 391; State v. Knowles, 185 Mo. 177; State v. Walker, 98 Mo. 111; State v. Patterson, 73 Mo. 695. (3) Complaint is made of the failure of the court to instruct the jury that a written admission or confession of the co-defendant could not be considered in determining defendant's guilt, such co-defendant being incompetent as a witness in the case either in the court or out of court for the State. No exception was saved to failure of court to so instruct, nor was any such instruction offered or requested by defendant. State v. Catlin, 118 Mo. 100; State v. Allbright, 144 Mo. 642; State v. Vinso, 171 Mo. 591. Even if properly saved for review, and if such instruction had been necessary, such confession by Gillespie could at most be nothing more than harmless error, inasmuch as it contained no material facts or information relating to defendant's guilt not already supplied by defendant himself in his admissions. (4) In view of the fact that there was evidence that appellant had admitted his guilt the action of the court in failing to instruct on circumstantial evidence is not open to criticism. State v. Armstrong, 167 Mo. 268; State v. Robinson, 117 Mo. 663; State v. McCord, 237 Mo. 247. (5) There is abundant evidence which goes to prove the whiskey manufactured was "corn whiskey." The unlawful manufacture of whiskey without designating the particular kind or brand constitutes a felony under the statute. State v. Pinto, 279 S.W. 144; State v. Wright, 280 S.W. 703.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On December 8, 1925, the Prosecuting Attorney of McDonald County, filed in the circuit court of said county, a verified information, which, omitting formal parts, reads as follows:

"Now comes J. T. Pinnell, Prosecuting Attorney within and for McDonald County, in the State of Missouri, in the behalf of the State of Missouri, under his official oath and upon his information and belief, informs the court that on or about the 30th day of October, 1925, at and in the County of McDonald and State of Missouri, one George Sandow and Harvey Gillespie did then and there wilfully, unlawfully and feloniously manufacture, make, brew, distill houch moonshine, corn whiskey, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.

"And the said J. T. Pinnell, prosecuting attorney aforesaid, upon his official oath and upon his information and belief aforesaid, doth further inform the court that on or about the 30th day of October, 1925, at and in the County of McDonald, in the State of Missouri aforesaid, one Ike Summers and Claud Summers then and there wilfully and unlawfully and feloniously were present, aiding, helping, abetting, assisting and maintaining the said George Sandow and Harvey Gillespie in the felony aforesaid, in manner and form aforesaid, to do and commit, contrary to the form of the statute in such cases made, and provided and against the peace and dignity of the State."

Both defendants waived a formal arraignment and entered their pleas of not guilty. On the date aforesaid a trial was had before a jury and the following verdict returned:

"We the jury find both the defendants guilty as charged in the first count in the information and we do assess the punishment of George Sandow at five years in the State penitentiary. And we do assess the punishment of Harvey Gillespie at five years in the State penitentiary."

On the date aforesaid, both defendants filed their respective motions for a new trial, which were overruled. Thereafter, the court granted each of said defendants allocution on the date aforesaid, entered judgment, pronounced sentence on each defendant separately, and each was granted an appeal to this court. The case of State v. Gillespie is separately briefed and numbered in this court.

Counsel for the defendant in this case have made a very brief and argumentative statement of the facts which we cannot accept. On the other hand, counsel for the State have made a very full and fair statement, which we adopt as follows:

"The testimony of the State in the case tends to show that on or about the 30th day of October, 1925, the sheriff of McDonald County, Missouri, L. R. Smith, and his deputy, George Jeffries, together with Joe Gailey, Sheriff of Benton County Arkansas, and one of his deputies, a Mr. Fields, made a raid in search of a still which they located at the mouth of a hollow some distance south of Pineville, Missouri, and in McDonald County. At the still when discovered, they found a fire burning in the furnace, some fifteen gallons of corn whiskey in fruit jars and other containers, eight fifty-gallon barrels of mash in the process of fermentation mash sticking to the sides of the cooker, and the ground around the still tramped down. Everything in fact indicating that the still had very recently been operated, and that actual preparations were under way...