*1 the instruction is abstract and other might under facts constitute error in the absence of further yet instructions to the as defendant failed explain to offer the movement of the elevator itself, absolve we do not think prejudicial the instruction error. IV. The court refused an instruction offered defendant, read ing: “The court instructs the that upon plain the burden is tiff your to establish to reasonable satisfaction plaintiff that ivas
caused fall or be thrown negligence down reason of part defendant, on the and unless this has been so proved, you your will find defend-, verdict in favor of the charges ant.” part Defendant error on the of the trial n refusing the instruction ground petition on the specific pleaded negligence. This court has a number of times held import an instruction of the of the one in was out of place, where the issue before the court was based on the doctrine ipsa loquitur. Ry. res Co., v. Met. St. 119 S. [Price Railroad, W. judgment Bond is af Higbee Hemuood, OC., firmed. concur. The foregoingopinion PER by Daws, C., adopted CURIAM: n judges
as the of the court. All of the concur. Appellant. (2d) 2 S. W. 767. Asa Stough, Two, February 18, Division 1928. *2 Gentry, Special
North T. and A. Attorney-General, Meyer, M. As- Attorney-General, respondent. sistant *3 By information filed in the .an Circuit Court
HENWOOD, C. charged appellant was with County; the unlawful manu- Phelps of whiskey. and corn He was moonshine convicted hootch, facture punishment $500, jail at a fine and im- and assessed his Judgment and sentence prisonment for six months. followed the ver- appealed. he dict and appellant October shows State’s evidence
The County. Rolla in living about five miles west of on a farm was morning day, of that in the and one of ten o’clock About deputies appellant’s his went to with house a warrant. While explaining the sheriff was his mission appellant’s wife, at the house, front his door of the walked around the house and yard, found in the near the entrance to the basement. Ap- pellant incited the into and the basement said: “Come down and stuff run off.” -They see this went to the and basement were immediately by appellant’s followed and wife the sheriff. of- The whiskey fully operation. ficers found there a equipped and copper boiler, connected, by The still copper coil, consisted of a cooling' tank, half-g'allon filled with water, tin container dripped arranged to catch the distillate as from coil for that purpose. capacity forty-five with a boiler, g'allons, was resting lighted full mash of corn and was on two coal oil stoves. manufacturing boiling process going The mash and the on, blast, full product under dripping the finished from the three-gallon jar coil into tin A container. stone full of distilled liquor, two-gallon keg wine, eight fifty-gallon barrels of mash, of corn, syrup, water made were also found the base- poured ment. officers out all the mash in the boiler and the all barrels, jar container, the stone tin except pint each, they preserved They bottle of which trial. charge apparatus took also all used in connection with keg still and the wine. While and the officers were inquired basement, appellant complaint as to who made the against' him and search warrant. asked see the As he read the justice peace search warrant and the name of who noted it, appellant, referring justice, issued said: “He did that. buys whiskey got He and has it in his some else for me. The *4 two-pint liquor copper boiler, copper coil, and bottles the oil stoves apparatus in used connection with and other the were ex- at hibited the trial and referred before the to the stand, and while on the witness but were not identified in separate marked as and were not offered exhibits evidence ex- in in case. The sheriff two hibits the testified that the the identify whiskey, that he was able to it as such bottles was corn and State, it. for smelling Another witness the a former whiskey by it, sheriff, tasting that he could corn testified tasting testify- in and, bottles, each of two while after ing whiskey. it presence he said corn and
Appellant in his own behalf and has filed no offered no evidence brief this court. assigned trial,
I. for to the action tbe motion a new error is change overruling appellant’s application of the trial for a alleged appellant that could application of venue. The impartial County a fair and trial in be- not have prejudice county of the inhabitants of that cause supported affidavit of and the It was against him. joint .persons. of six other recites the joint affidavit affidavit “they affiants and states that are credit- names and addresses County Phelps, Missouri, State of citizens disinterested able, reside, county;” of said localities it further different foregoing application change “they read the for a that have states alleged that facts therein cause” and “the are venue day filed on application ivas the case was set for correct.” The attorney testified, opposition same, trial, prosecuting and the to the twenty him previous notice to and about that it filed presented the court. to The court overruled minutes before was grounds specified previous application on the that reasonable given prosecuting attorney, had not been notice thereof joint did show on its face that the affidavit not affiants were that the neighborhoods county. in the of different residents applications changes statute, venue crim such, previous provides ap that “reasonable cases, inal notice of plication given prosecuting attorney.” in all cases be to the shall 192.1,pp. purpose The manifest 3973, Laws this 207.] [Sec. give attorney prosecuting opportunity provision is to time and investigate application the merits of the and the affidavits filed in appears plainly same. It did not support com particular , ply statute and the with’the trial court would have fully justified overruling ground on been Williams, 263 alone. [State joint affidavit, application, filed of this While the recites pur reside different localities that the affiants addresses, ports give appear, it does not on the face of the addresses, places affidavit, residence, that such are located “in county,” required by neighborhoods of the different the statute. that, court has held “as the affidavits Moreover, this of these five or neighborhoods persons operate from different are to more as the prejudice, inquiry in lieu of the conducted proof of the court facts, heretofore, the affidavits should state legal con clusions, court can determine whether the so witness is com subject.” opinion petent express an v. Bradford, *5 separate And in 285 W. l. c. the concurring opinion S. of it was J., the Bi’adford further held that: White, five “The place affidavits, two dispense the of the affidavits take also proof. affidavits must additional These five come-from citizens in neighborhoods county. joint affidavit different the Therefore satisfy separate would statute; five affidavits the there be must neighborhoods which of the show the situation five different county.” loe. [Same cit.]
It properly follows that trial the the court overruled for a change grounds on the court’s specified, venue the ruling mentioned, grounds could have been based the additional holding accordance with the Bradford case. asserted, trial,
II. It is further the motion for new overruling appellant’s quash court erred the search motion By warrant and to suppress the evidence obtained thereunder. sufficiency challenged this motion searched, as directed description premises to be sufficiency ap warrant, and the plication warrant, proper making search ref provisions of and stat erences to the the Constitution relating complained State, utes to the matters of. searched, premises
The search warrant to be as fol- describes lows : dwelling
“In premises house thereof the out- certain buildings upon premises, located said situate about five miles west of being Rolla, dwelling occupied County, Missouri, said house ’’ Stoug'h family Asa as their residence. provides Section 11 Article II of this of the Constitution any place, any person thing, that “no warrant or seize or describing shall person issue without searched, to be or the (Italics ours.) thing may seized, nearly be.” Section 25, 1923, page Laws 244, to the issuance of search war rants, language organic particular. follows law this dealing question, with this case of State Mo. l. c. Lock, 421, 259 W. l. S. c. said: description necessary,
“Some cases hold that minute such as convey description sufficient to deed. We think real estate ought property certainty, sufficient clearness and so that a mistake not ensue. Kentucky Commonwealth, recent ease of Little v. (Ky. App.) directly point. In upholding property de- scription, even less involved, definite than the one here Kentucky Appeals follows: reads, Court
“The warrant directed the search of the residence of County, Ky., Shelby. Pike creek, located No doubt this on Indian entirely an description sufficient to enable the sheriff of the Certainty know to a what intended. common intent is all necessary descriptive part that is search warrant.”
1204
It necessary seems practical neither nor describe farm dwell- ing house in a degree search warrant with particularity the same dwelling as a city, house located in a village, town or where different families in live adjoining the same house and in houses and where definitely houses by by described street numbers or other marks of identification. Considering the location appellant’s dwelling house, it is our conclusion that description of the same in the search warrant require- is sufficient to meet the ments of the Constitution and the statute, contemplated by the framers thereof. application for the search case, warrant this after describ
ing premises to be searched as the same are described warrant, quoted, above that, states said
premises, "intoxicating liquor being unlawfully manufactured, sold, kept; stored and that thereat and being kept still, doubler, worm, therein is also used and tub, mash, tubs, fermenting tubs, worm vessels, mash fixtures equipment, parts thereof, used fit for use the unlawful production intoxicating liquor, manufacture and that and. Stough public being residence said Asa used as a resort, contrary to application by law.” The prosecuting was made at torney by supported his affidavit. repeatedly
This court has application held that an of this character judicial finding is sufficient to "probable cause” for the issuance of many a search warrant. And it has held, also been cases, finding "probable recent impeached that the cause” can be only by appear facts or the want of facts which on the face of the by attorney record and not prosecuting evidence that or other (cid:127) prohibition personal knowledge enforcement officer had no truth of the facts stated for the search warrant. 395; Halbrook, S. W. Stevens, State v. Marshall, State In connection, this attempt it should be noted that the validity to attack the by warrant of the search this case evidence of this kind was stated, rule, probative avail. Under the above it had no effect and should have been excluded.
III. is no merit in There contention that the court erred permitting testify concerning witnesses for the articles, and the still and other seized hv the sheriff under permitting
warrant, the same to be exhibited before jurjq because said articles "were at no time offered as put exhibits, paper evidence the State.” Unlike these articles could not been have nreserved as a nart of court, record, subsequent for review trial court or witnesses, It at the trial of both civil common occurrence room and cases, and criminal refer to certain articles the court explain articles, though to such reference part of the record. same are in evidence and made offered marking and the still and other articles as exhibits and the of the same in evidence would have amounted offer *7 nothing formality, to more than mere the failure State appellant. to do this v. could not have been harmful Curt [State ner, 262 1341; Davis, 237, Mo. 170 S. W. State v. 237 Mo. 140 214, 902; S. 708, W. v. 119 S. Gebhardt, State W. 350.] IV. complaint jury unsupported The that “the verdict by any competent necessarily and material fails with the evidence” puling against suppress the means the motion to evidence obtained warrant. With this evidence sufficiency of the evidence a whole cannot be serious- ques£ioned. ^ product liquor, as to the corn mash and finished of distilled appellant’s basement, found have been sufficient to would production jury, verdict at of these articles They jury. the trial or the exhibition of before the saw the same operation, making liquor mash, still actual and appel- from corn lant invited his he said plant, them to witness when to the ‘‘ deputy sheriff: down and this stuff run The sheriff Come see off. and the former sheriff identified the whiskey, smelling by tasting corn it and it. former the latter permitted And lay now well settled that witnesses whiskey ordinary experience tasting corn from smelling 133; Moore, the same. v. 279 S. W. State v. [State Griffith, province weigh 279 W. S. It is the 135.] pass evidence and on the v. credibility of witnesses. Hed- rick, properly S. W. The demurrer the evidence 352.] overruled. assignments error, V. Other admission evi
dence,and general in given character to the are instructions any particularity the errors specify do comply complained assignments of. Such do not ^1(? jn riqe and, therefore, are not preHent criminal cases Laws subjects Sec. for our consideration. proper [New 856; Murrell, 289 S. W. State Standifer, p.
We find prejudicial proper no or trial error, either the record proceedings. ILigbee 00., judgment Davis, is affirmed. concur.
PER foregoing opinion Henwood, C., CURIAM: The adopted judges All of of the court. concur. Evelyn and Eleanor Dausch, Boyd, Dausch, Dausch Bertha Brewing Friend, Her Error, Next Plaintiffs in v. St. Louis (2d)
Association. 46. Two, February 18,
Division 1928.