*1 SupRemb Missouri, Vol. Court oe to meritorious prove be Criticisms of the court’s instructions Instruction to them. merely will upon We refer closer examination. jury. assuming be found dangerously facts to comes any possible anys” “if so finds’’ would cure jury A “if few suggested. sort error probably hypercritical, but there of Instruction is
The-criticism per- not “than” which should be is word an evident omission of the made 8, on to officers to recur. Instruction statements mitted repeatedly approved by is in the others form court. refusing appellant’s instruction told
There was error jury proof of and de- illicit relations between guilt wife not taken as of defendant’s ceased’s be alleged murder. Such tended to show motive properly purpose and could be considered for that and iff murder way tending guilt; appellant’s but, was evidence show asked, improper it form in which the instruction was under the record. assignments questions
Other error which will likely relate not trial arise another and hence need noticed now. Because judgment pointed out, the the error above is reversed and the cause remanded retrial.
White, concurs; Walker, P. dissents. Appellant. Ed Mohr,
The State v. Two, December Division Question. 1. APPELLATE JURISDICTION: Misdemeanor: Constitutional Although charges only misdemeanor, the information this court has appellate jurisdiction question raised, where a constitutional warrant, by objection motion to a search evi- introduction of by assignment dence under the information and in the motion for new trial. 2. DEMURRER TO EVIDENCE: Practice: Evi- Substantial dence. In the consideration appellate the evidence the theory court does so on the the State was entitled to have the every draw reasonable average the other inference which fair-minded men of intelli- gence might proven draw adduced, and on hand plain duty it is its in the to reverse the verdict if there is no substantial evidence charge. record to sustain the LIQUOR: 3. INTOXICATING Possession: Irrelevant Matters. There charge operated still, or that he manufactured intoxicating liquor, testimony sold and trees vat, ato concrete fence covered surrounding presence of ashes near the vat presence of barrels which mash, wholly smelled like contained ir- considering relevant in whether there is substantial evidence to sustain charge that defendant v. Mohr. 1926] tending information, in the is not even described a circumstance timely objection made, possession; if should be thereto is it
to show excluded. *2 Conjecture. gallons -: The fact moon- 4. -: three forty-eight quarts home 180- brew were found on defendant’s shine quarter house, a from acre fifty about of mile his a woods about highway, proof feet from substantial he was in the liquor, good reputation, unlawful where bore ownership they denied nothing at the time were found asserted that knew them, and testified that neither the nor home brew him, belonged given premises, that he did not were know on his permission put there, no one them and that he had never owned possessed whiskey. either moonshine or corn Specific 5. SEARCH WARRANT: Facts: The Jurisdiction. prosecuting attorney, justice upon affidavit of a peace which issues cause, warrant, specific showing probable search need not set out and the search warrant based on such affidavit is not an unconstitutional specific facts; warrant because the affidavit does not detail the and this being to them in on the holding many court, eases decided this is called attention may brought order that a misdemeanor case not be to this court warrant, specific facts, lack such not a constitutional warrant. Juris-Cyc. Corpus Courts, J., 512, 1081, p. References: 15 C. Section n. 65. Law, J., 1173, 605, 16; p. 1570, 16 p. 766, Criminal C. Section n. n. Section 77, 78; 77; p. 3569, p. 223, 17 Section C. n. Section n. 38. In- toxicating Liquors, 3; p. p. C. 33 Section n. 53; p. 762, n. n. 59. Appeal Judge, Henry Circuit Westimes, Cole Court.—Hon. J. Reversed AND remanded. P. for appellant.
H. Lauf (1) The search seizure was case unreasonable and un- 65; lawful. Smith, State v. 262 S. Owens, W. State v. 259 W. S.
100;
259
Lock,
State v.
S.
116;
128;
W.
State
259
Tunnell,
v.
"W.
8.
Sec.
1923, p. 244;
Laws
Art. 2,
Constitution,
Secs. 11 and 23, Mo.
4th and
(2)
5th Amendments of U. S. Constitution.
The court
case,
failing*
erred in
all
(a)
instruct on
the law in this
The evi-
dence
than circumstantial,
cannot
be more
and the court
meaning
should have
instructed the
of that
16
term.
C.
2433;
Bond,
J.
v.
North T. and II. 0. respondent. Attorney-General, Assistant (1) As all out in and not open 273 S. building, necessary. Cobb, State v. no search warrant 123; Zugras, Moss, 267 S. W. v. Fed. Elrod Spaugh, Underwood, 200 Mo. Mo. Evans, McNally, (2) Grant, 79 evidence was sufficient to take the case *3 jury. appellate Hughes, court will not interfere. State v. Bellknapp, Began, y. Oertel, 280 Mo. Long, 257 Mo. Yandell, Arnett, S. W. 83. RAILEY, Prosecuting C. On 26, 1925, Attorney October the of County, Missouri, Cole county, filed the circuit of said court which, omitting verified information parts, formal as reads follows: “Comes now Prosecuting Attorney Sam S. Haley, within and for County the Missouri, of Cole and for and on behalf of the Missouri, State of and his oath of office informs the court that Ed Mohr, Mohr and Albert County late of the of Cole and day October, on the 18th county at and in said state, did have in quantity their of intoxi- cating liquor, to-wit, quarts, seven less, more or whiskey, moonshine quarts, and 28 or less, more beer; against home brew peace dignity of the State.” Both arraigned, defendants were and each was tried before a and, on following December 4, verdicts were returned:
“We, jury, defendant, Mohr, find the Ed guilty charged as punishment the information and assess his at $300.
“W. A. Moore, Foreman/’ “We, jury, Allen, find the guilty Albert as punishment in the information and assess his $300. “W. A. Foreman.” Moore,
Thereafter, during day, both the same joint defendants filed'their February motion for a new trial. On 24, 1926, the above motion Mohr, was Ed. overruled as to defendant and sustained as to defend- ’ Mohr, although ant Allen which it was sustained does Mohr. 1926} Ed date, defendant above Thereafter, on in the record. appear him, against sen- rendered allocution, judgment granted Mohr was an aforesaid, and verdict conformity pronounced tence him to this court.
appeal allowed that widow to show tends the State part of 180 acres containing about living on her owned, Mohr was miles west about three located Highway, 15 State of land on No. farm operated the Missouri; that she-and City, Jefferson anything if operation, expenses paying the together and, after them. divided between it was to be left, in sub- testified, County, Cole Sheriff of Withaup, Deputy Walter issued warrant, a search he stance, that on October premises to search authorized him justice peace, which of the house distance from the intoxicating liquor; that some aforesaid for ground, about deep three feet vat, about found a concrete long; feet the vat was sur- twelve and about three feet wide mash barrels close there were some fence, a rail rounded had been trans- mash; a number of cedar trees that smelled fence; bottom of the trees was about the along this that the planted placed against limbs had been the rail that white oak leg; of his size highway, the house and the fence; up in the woods between whiskey; that bottles of corn he found some quart found four or five highway same; and on west side of fifty feet pear orchard and in edge grass, of the that the beer join; photograph that a orchard and the the woods where jury; in evidence and examined that defend- vat was offered vat calves; near the planted trees were shade the ant said the prem- warrant shows he search return on the gallons ises, three of moonshine confiscated, more *4 forty-eight quarts less; of home brew more or less, they that and highway; fifty from the that feet found the beer defendants objection liquor; defendant, that over the ownership of the denied separate quart whiskey six bottles of produced the witness evidence; that where the home brew or were offered'in beer was quarter of a mile from approximately the Mohr found, house; it was located about feet house; vat is from the that the concrete that highway. the was located the beer State’s in the evidence foregoing constituted chief. The de- having been to said overruled,
fendant’s he tes- that the barrels behalf, mentioned in tified in his own evidence were vinegar; that making neither whiskey the them for used nor the him; that he did not belonged they to know brew home were on the permission put gave one premises; that he them there; that whiskey house to where the found; it was 1491 feet that arrested; of when that possession it never he denied SupRbmb Missouri, oe Court Vod. farm; any moonshine mash' or still on he never sold the home brew. nothing they
Albert and each testified that knew Mohr his mother whiskey about the aforesaid. general reputa-
A the testified that knew number of witnesses law-abiding truthful, citizen tion as to good. that it was
The defendant and as other evidence defense, closed his offered, a demurrer to the interposed at conclusion the case the evidence, which was overruled.
Other disposed case will later. matters connected the be I. impression during argument We were under oral the case, this charged that defendant was with the unlawful sale of beer, moonshine in but we find on examination of the out, simply formation he is heretofore set liquor. with the unlawful of said He was Jurisdiction, prosecuted misdemeanor, therefore for a and as a con question stitutional was raised in the motion to warrant, by objection to the introduction evidence under the in formation, assignment trial, the motion new for a properly cause is here for review. Revised Statutes as amended Laws 1921, page 414, reads as follows: any person
“It shall . possess be unlawful for . . to . . . . liquors within, . . . . . State of except provided,” as hereinafter . . . nothing
There is record us operate before which could as an exception in this case. streunously
It is insisted that his demurrer evidence should have been sustained the conclusion of the case. considering In must question, we do so on the theory that every was entitled to have the draw reasonable inference- which fair-minded of average intelligence men proven Demurrer draw facts in If, the.case. Evidence. hand, other is no there substantial evidence in the charge that defendant was posses sustain record evidence, it mentioned becomes plain duty our sion kept cause. It and remand the mind, reverse still, operating a charged with nor is not manufacturing or sell intoxicating tiguor. ing concrete surrounding same, trees the barrels fence smelled like *5 pile mash, had of manure contained the ashes wholly issue, are irrelevant to as to vat, whether defend whiskey of the possession described ant was in evidence. 209 State v. MohR. 1926} objected to, and regard vat, etc., was testimony in to The above Counsel for the stricken defendant’s counsel asked that it be out. just tending possession.” show “It State said: circumstance matters opinion, We are of the that the above place been excluded. etc., proper had in the ease should have legal analysis, shows, When final the record reduced its alleged possession introduced as defendant’s evidence was permitted draw the inference de liquor, and the were known the joint possession land, fendant’s that he must have liquor same. Defendant established was there and had control of good being law-abiding reputation and for citizen. for truthfulness He under owner of or that denied oath that he was the respect same, he knew it was there. no admissions in but He made nothing liquor. No asserted when arrested that he knew about the tending drinking man, evidence was offered to show that he was a intoxicating liquor, that he had ever been seen presumption ever sold or With made same. surrounding innocence can him, how it be that he was convicted startling on substantial proposition, evidence? It would be a we announce—as contended for State this case—that a farmer, good reputation with a law-abiding citizen, solely proof convicted of crime intoxicating liquor had been portion found on some his 180-acre in the teeth of his sworn presence he was not aware of its prem on his opinion ises. We are that the evidence in this case is based purely upon suspicion and that it does not even dignity rise to the conjecture. respectable Capps, v. 278 S. W. [State cited; cases 274 Buckley, 74; S. W. 274 Tallo, S. 469; Goodson, W. 299 389; v. Mo. 252 S. W.
Bowman, 294 110; Mo. 243 W. v. Singleton, 243 S. Hollis, W. 225 S. W. State Morney, v. 93 S. W. Pate Dumbauld, v. cited;
S. W. and cases Perkins v. Wilcox, S. W. 979.] below, The court presented the facts record, should have sustained defendant’s demurrer to the evidence at the conclusion of the case. II. Counsel spent has large portion his brief
trying to convict the court of error in overruling his motion to suppress warrant and certain evidence. The court fol lowed rulings the latest Supreme Court on this Search subject and committed no error in said ruling. [State Warrant. v. Gooch, 285 S. W. Halbrook, 279 S. W. v. Cockrum, 278 S. 700; State v. Cobb, S. W. Perry, 267 S. W. 831.] 316 Mo.—14. *6 op Term,, CotjRT 316. Missouri, Vol. Suereme authorities, in order that misdemeanor
We call attention to above by attacking the search brought to this court may longer cases attorney prosecuting the affidavit of the on warrant unconstitutional, because it does not set is for the search warrant showing probable cause. specific out may that the possible.on the cause III. It is re-trial ruling, within our sustain evidence, sufficient produce be able judgment record, however, stands, as it below On conviction. G., concurs. Eigbee, and the cause remanded. is reversed opinion foregoing C., adopted is Eailey, CURIAM:—The PER judges All of the concur. opinion as of the court. White, Appellant. v. Albert , 20, December
Division Two LIQUOR: , Sale:. Later Admission of Possession. 1. INTOXICATING having whiskey sold a certain date the woods defendant Where and positive that date there oil he went whiskey men, brought young and sold to four the admission of evidence back later, upon young a week a second visit of the same men that about whiskey premises, he stated to them that he had in his others to whiskey possession and asked one of them if the he had sold himto whiskey, good the former occasion was is not error. by jury 2. PUNISHMENT: Assessed Court. Where the find the defend- guilty charged, agree inflicted, punishment fail ant or to assess as but to be authority punishment verdict, do not declare their the court has punishment imprisonment authorized term penalty statute as the for the crime. Impeached by Jury. jury - — : Minimum: find Where the —:-: guilty charged, penalty, as fail but to assess the the court is not required punishment minimum to assess the authorized To statute. hootch, felony, court, upon sell moonshine or corn is a and if the finding failing guilty a return of a verdict the defendant such offense but punishment, punishment years’ imprison- to assess a assesses the at two ment, judgment impeached by such and sentence cannot be affidavits of jurors punishment to the effect that had the assessed the jail. juries would have confined it to a fine aor short term in Verdicts of impeached jurors. cannot be affidavits of the Juris-Cyc. Corpus Law, J., 1174, p. References: Criminal 16 C. Section 605, Section 764, p. 1111, p. n. Section n. 17 C. Section n. Intoxicating Liquors, p. -510, p.' n. 3. 33 C. Section 544, p. p. 797, n. Section n. n. 39. Appeal Stewart, Judge. from Christian Circuit Fred Court. —Eon.