The State v. Varnell
| Decision Date | 20 December 1926 |
| Docket Number | 27034 |
| Parties | The State v. H. S. Varnell, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court; Hon. W C. S. Walker Judge.
Reversed and remanded.
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. The weight thereof is for their consideration. Where there is substantial evidence of guilt, the appellate court will not disturb the verdict. State v. Yandell, 201 Mo. 662; State v. Long, 257 Mo. 208; State v Arnett, 210 S.W. 83. (2) It was not necessary to prove guilt of principal in order to convict accessory. Sec. 3689 R. S. 1919.
The Prosecuting Attorney of Dunklin County filed in the circuit court of that county an information in four counts, in the first count charging the appellant and one Frank Cartwright with using distilling equipment and utensils in manufacturng "moonshine," "corn whiskey," and in the second count with the manufacture of "moonshine," "corn whiskey," contrary to Sections 2 and 21 of the Act of 1923. In counts three and four the defendant was charged with being accessory after the fact to the commission of the said offenses by Frank Cartwright.
On a trial, February 4, 1925, the jury returned a verdict finding the defendant guilty on count three of the information, and assessed his punishment at $ 500 fine; found him guilty on count four, and assessed his punishment at twelve months' imprisonment in the county jail.
Each of said counts three and four charged a felony under Section 3688, Revised Statutes 1919. We do not find in the record any motion by the defendant asking that the State be required to elect on which count it would seek conviction, nor other challenge to the proceeding wherein the defendant was tried and convicted of two felonies at one and the same time.
The appellant has filed no brief here. His motion for new trial assigns a number of alleged errors, the first of which is that there is no substantial evidence to support the verdict.
The evidence shows that T. F. Donaldson, Sheriff of Dunklin County, September 29, 1924, in company with a number of deputies, went to Kirk, in that county, for the purpose of making a raid on Frank Cartwright's distillery. In this connection it may be said that Frank Cartwright afterward pleaded guilty to the unlawful manufacture of corn whiskey. When the sheriff and his deputies got off the train at Kirk the defendant, who was known as "Red Buck," got off at the same time. None of the witnesses saw him after that to recognize him by sight. The officers went east along a drainage ditch to where the Cartwright still was in operation, a short distance from Kirk. When they arrived at the place they found Cartwright operating the still. Two other persons were present, Charles Taber and Bill Witham. As the officers approached, Taber and Witham went away. Taber left in a boat, presumably on the ditch. Witham, as we gather from the evidence, went away on the other side of the ditch. Cartwright made no attempt to escape and was arrested.
The evidence upon which the State relies to sustain the conviction of the defendant is this:
As the sheriff and his party went down the ditch some man on the other side of the ditch went along and called: According to one witness this man said: "They are coming!" One witness said that he could dimly see the man who did this calling across the ditch, and that he had on a yellow shirt which resembled the shirt worn by "Red Buck" when he was on the train. Another said that he recognized Red Buck's voice. Others described Varnell's clothing which he wore on the train, and said that the man who did the calling was dressed like that.
The witnesses did not say that Witham and Taber fled at the approach of the officers, but that may be inferred. Cartwright did not move from the place where he stood...
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