State v. Gilden , 316 Mo. 252 ( 1926 )

The defendants were jointly charged by information in the Circuit Court of Taney County with the manufacture of hootch, moonshine or corn whiskey. Upon a trial to a jury, on a change of venue to the Douglas County Circuit Court, they were convicted and each sentenced to two years imprisonment in the penitentiary. From this judgment they have appealed.

The defendants were bachelor brothers, living alone on premises in Taney County, let to them by a non-resident owner. In July, 1925, the Sheriff of Taney County, armed with a search warrant, went to the premises occupied by the defendants and after searching the dwelling for liquor and finding none they saw the defendant Jim Gilden coming up from behind a bank about one hundred and twenty-five yards from the house. They went down to the place from which he came and found a still in operation, and about fourteen barrels of mash and several fruit jars containing moonshine or corn whiskey. In a barn near the house they found a barrel containing fifty or sixty gallons and a keg containing about ten gallons of whiskey. In another outbuilding was found a large number of empty sugar sacks, and on the back porch of the dwelling there were three sacks of sugar. They arrested the defendant Jim Gilden, who admitted his knowledge of the manufacture of the liquor, but denied that he had any connection with it, except to cut the wood and haul the water used by his brother. Dave Gilden, the other defendant, came up from behind the bank from which Jim had come while the search was being made. He declared that the still belonged to him and admitted that he had been manufacturing moonshine whiskey, and Jim repeated his denial of participation in the manufacture, saying: "I aint got nothin to do with this still. It aint mine. I chop the wood for Dave and haul in the stuff and he pays me for it."

The testimony of the defendants summarized is, that Dave Gilden built, owned and operated the still, and that his brother Jim had no connection with the same. The latter, in testifying, reiterated his denial of any complicity in the offense charged; that although he knew that the still had been built on their premises and had been in operation for a long time he had nothing to do with it and that he protested against its use by his brother.

I. The validity of the warrant under which the search of the premises of the defendant was made is assailed. The statute (Sec. 25, Laws 1923, p. 244), under which the warrant was issued, requires, among other things, that the prosecuting attorney may file a petition verified by his oath before a justice of the peace for a search warrant (as was done in this case),Search. setting forth the facts on which it is based,Warrant. describing the place to be searched, the thing or things to be seized; the justice before whom the same is filed, either from the facts set forth in the petition or from evidence heard thereon, that there is probable cause to believe that intoxicating liquor is being unlawfully manufactured, sold, stored or kept on the premises described in the petition or that any of the utensils or instrumentalities named in the statute are being used or kept for the manufacture of intoxicating liquors, shall cause to be issued a search warrant, which shall substantially recite the facts set forth in the petition. This is followed by a declaration of the duties devolving upon the officer to whom the writ has been issued.

This statute has frequently been construed. Where, as here, the warrant affirmatively states the facts on which the petition is based and in so doing names the person and describes the premises to be searched we have held the warrant to be sufficient to authorize the search. [State v. Gooch, 285 S.W. 474; State v. Hall, 279 S.W. 102; State v. Halbrook, 279 S.W. 395.]

II. The still was in operation in the manufacture of whiskey when found by the officers and was on the premises in the possession and actual occupancy of the defendants. Dave Gilden claimed that he owned and operated the still. Jim Gilden admitted that he was aware of its location and use and that he "cut and hauled wood and brought stuff to his brother for its operation" but denied he was guilty of any complicity in thePossession. manufacture of whiskey. His joint possession of the premises, the cutting and hauling wood to the still and the transportation of other material to be used in its operation was sufficient to authorize the jury to find him guilty, despite his denial. [Kinney v. State, 285 S.W. (Mo.) 87; State v. Ayres, 285 S.W. (Mo.) 997.]

III. The legal propriety of Instruction Four, given by the court on its own motion, is assailed. It is as follows:

"Gentlemen, if one assists in the violation of the law, knowing at the time that the same is a violation, then one so assisting is equally guilty as the principal, whether he had any interest in the enterprise or not."

The defendants were charged as principals. The evidence was sufficient to sustain the charge. Out of the abundance of caution, however, as we are authorized to conclude from all of the facts, the court construed the testimony so as to sustain the conclusion that Jim Gilden did not participate in the manufacture of the liquor but assisted his brother in so doing. Either under the hypothesis that he was a principal or an accessory before the fact, he was guilty under our statute (Sec. 3687, R.S. 1919) of an offense of the same degree, and the instruction having properly declared the law upon the theory that he was an accessory before the fact he suffered no injury from the giving of this instruction and has no ground of complaint. The reasoning in support of this conclusion is, that one aiding or abetting in the commission of a felony may be charged in accordance with the facts or as a principal. If charged as a principal and there is evidence, as construed by the trial court, that Jim Gilden assisted rather than participated in the crime, an instruction on a common design or purpose, such as Instruction Four may be designated, was not error.

There was no evidence authorizing the incorporation in Instruction Four of the statutory exemptions designated in Section 3688, Revised Statutes 1919, and hence it was not necessary to refer to them. Whether referred to or not they were matters of defense and the burden was on the defendants to establish them to entitle them to the benefit of the same. [State v. Miller, 182 Mo. 370, 81 S.W. 867.]

IV. Instruction D, asked by the defendants and refused, incorrectly declared the law as to the non-liability of Jim Gilden and the court having given a proper instruction on this subject, the defendants' instruction was properly refused.

We have found it necessary, on account of the nature of the briefs and the statements of facts of both parties, to refer solely to the transcript in the determination of this appeal. In the absence of error the judgment of the trial court is affirmed. All concur.