On October 26, 1925, the Prosecuting Attorney of Cole County, Missouri, filed in the circuit court of said county, a verified information which, omitting formal parts, reads as follows:
"Comes now Sam S. Haley, Prosecuting Attorney within and for the County of Cole and State of Missouri, for and on behalf of the State of Missouri, and upon his oath of office informs the court that Ed Mohr and Albert Mohr, late of the County of Cole and State of Missouri, on the 18th day of October, 1925, at and in said county and state, did unlawfully have in their possession a quantity of intoxicating liquor, to-wit, seven quarts, more or less, of moonshine whiskey, and 28 quarts, more or less, of home brew beer; against the peace and dignity of the State."
Both defendants were arraigned, and each was tried before a jury and, on December 4, 1925, the following verdicts were returned:
"We, the jury, find the defendant, Ed Mohr, guilty as charged in the information and assess his punishment at $300.
"W.A. MOORE, Foreman."
"We, the jury, find the defendant, Albert Allen, guilty as charged in the information and assess his punishment at $300.
"W.A. MOORE, Foreman."
Thereafter, during the same day, both defendants filed their joint motion for a new trial. On February 24, 1926, the above motion was overruled as to defendant Ed. Mohr, and sustained as to defendant Allen Mohr, although the ground on which it was sustained does *Page 207 not appear in the record. Thereafter, on above date, defendant Ed Mohr was granted allocution, judgment rendered against him, sentence pronounced in conformity with the verdict aforesaid, and an appeal allowed him to this court.
The testimony on the part of the State tends to show that widow Mohr owned, and was living on her farm, containing about 180 acres of land on No. 15 State Highway, located about three miles west of Jefferson City, Missouri; that she and defendant operated the farm together and, after paying the expenses of operation, if anything was left, it was to be divided between them.
Walter Withaup, Deputy Sheriff of Cole County, testified, in substance, that on October 16, 1925, he had a search warrant, issued by a justice of the peace, which authorized him to search the premises aforesaid for intoxicating liquor; that some distance from the house he found a concrete vat, about three feet deep in the ground, about three feet wide and about twelve feet long; that the vat was surrounded by a rail fence, and there were some mash barrels close by that smelled of mash; that a number of cedar trees had been transplanted along this fence; that the bottom of the trees was about the size of his leg; that white oak limbs had been placed against the rail fence; that up in the woods between the house and the highway, he found four or five quart bottles of corn whiskey; that he found some beer about fifty feet from the highway and on west side of same; that the beer was in the edge of the pear orchard and in the grass, where the woods and the orchard join; that a photograph of the vat was offered in evidence and examined by the jury; that defendant said the trees were planted near the vat to shade the calves; that the return on the search warrant shows he found on said premises, and confiscated, three gallons of moonshine whiskey more or less, and forty-eight quarts of home brew more or less; that they found the beer about fifty feet from the highway; that defendants denied ownership of the liquor; that over the objection of defendant, the witness produced six separate quart bottles of whiskey which were offered in evidence; that where the home brew or beer was found, it was approximately a quarter of a mile from the Mohr house; that the concrete vat is located about 150 feet from the house; that the beer was located near the highway.
The foregoing constituted the State's evidence in chief. The defendant's demurrer to said evidence having been overruled, he testified in his own behalf, that the barrels mentioned in evidence were used by them for making vinegar; that neither the whiskey nor the home brew belonged to him; that he did not know they were on the premises; that he gave no one permission to put them there; that it was 1491 feet from the house to where the whiskey was found; that he denied possession of it when arrested; that he never had any *Page 208 mash or still on the farm; that he never sold any moonshine or home brew.
Albert Mohr and his mother each testified that they knew nothing about the whiskey and beer aforesaid.
A number of witnesses testified that they knew the general reputation of defendant, as to being a truthful, law-abiding citizen and that it was good.
The defendant closed his defense, and as no other evidence was offered, interposed at the conclusion of the case a demurrer to the evidence, which was overruled.
Other matters connected with the case will be disposed of later.
I. We were under the impression during the oral argument of this case, that defendant was charged with the unlawful sale of moonshine whiskey and beer, but we find on examination of the information heretofore set out, that he is simplyAppellate charged with the unlawful possession of saidJurisdiction. liquor. He was therefore prosecuted for a misdemeanor, and as a constitutional question was raised in the motion to quash the search warrant, by objection to the introduction of evidence under the information, and by the assignment in the motion for a new trial, the cause is properly here for review.
Section 6588, Revised Statutes 1919, as amended by the Laws of 1921, page 414, reads as follows:
"It shall be unlawful for any person . . . to . . . possess . . . intoxicating liquors within, . . . the State of Missouri, except as hereinafter provided," . . .
There is nothing in the record before us which could operate as an exception in this case.
It is streunously insisted by appellant that his demurrer to the evidence should have been sustained at the conclusion of the case. In considering this question, we must do so on the theory that the State was entitled to have the jury draw every reasonable inference which fair-minded men of average intelligence might draw from the proven facts in theDemurrer to case. If, on the other hand, there is no substantialEvidence. evidence in the record to sustain the charge that defendant was unlawfully in possession of the liquor mentioned in evidence, it becomes our plain duty to reverse and remand the cause. It should be kept in mind, that he is notcharged with operating a still, nor manufacturing or sellingintoxicating liquor. The testimony relating to the concrete vat, the fence and trees surrounding same, the barrels that smelled like they had contained mash, the pile of manure and the ashes found near the vat, are wholly irrelevant to the issue, as to whether defendant was in possession of the whiskey and beer described in evidence. *Page 209 The above testimony in regard to the vat, etc., was objected to, and defendant's counsel asked that it be stricken out. Counsel for the State said: "It is just a circumstance tending to show possession." We are of the opinion, that the above matters relating to the vat, etc., had no proper place in the case and should have been excluded.
When reduced to its final analysis, the record shows, that no legal evidence was introduced as to defendant's allegedpossession of the liquor, and the jury were permitted to draw the inference from defendant's joint possession of the land, that he must have known the liquor was there and had control of same. Defendant established a good reputation for truthfulness and for being a law-abiding citizen. He denied under oath that he was the owner of the liquor or that he knew it was there. He made no admissions in respect to same, but asserted when arrested that he knew nothing about the liquor. No evidence was offered tending to show that he was a drinking man, that he had ever been seen in possession of intoxicating liquor, or that he had ever sold or made the same. With the presumption of innocence surrounding him, how can it be said that he was convicted on substantial evidence? It would be a startling proposition, should we announce — as contended for by the State in this case — that a farmer, with a good reputation for being a law-abiding citizen, might be convicted of crime solely on proof that intoxicating liquor had been found on some portion of his 180-acre farm, in the teeth of his sworn testimony that he was not aware of its presence on his premises. We are of the opinion that the evidence in this case is based purely upon suspicion and that it does not even rise to the dignity of respectable conjecture. [State v. Capps, 278 S.W. 698, and cases cited; State v. Buckley, 274 S.W. 74; State v. Tallo, 274 S.W. 469; State v. Goodson, 299 Mo. 321, 252 S.W. 389; State v. Bowman, 294 Mo. 245, 243 S.W. 110; State v. Singleton,294 Mo. 346, 243 S.W. 147; State v. Hollis, 284 Mo. 627, 225 S.W. 952; State v. Morney, 196 Mo. 49, 93 S.W. 1117; Pate v. Dumbauld, 250 S.W. 53, and cases cited; Perkins v. Wilcox, 242 S.W. 979.]
The court below, on the facts presented in the record, should have sustained defendant's demurrer to the evidence at the conclusion of the case.
II. Counsel for appellant has spent a large portion of his brief in trying to convict the court of error in overruling his motion to quash the search warrant and suppress certain evidence. The court followed the latest rulings of the Supreme Court on this subject and committed no error in said ruling.Search [State v. Gooch, 285 S.W. 474; State v. Halbrook, 279Warrant. S.W. 395; State v. Cockrum, 278 S.W. 700; State v. Cobb, 273 S.W. 736; State v. Perry, 267 S.W. 831.] *Page 210
We call attention to above authorities, in order that misdemeanor cases may no longer be brought to this court by attacking the search warrant on the ground that the affidavit of the prosecuting attorney for the search warrant isunconstitutional, because it does not set out the specific facts showing probable cause.
III. It is possible on a re-trial of the cause that the State may be able to produce sufficient evidence, within our ruling, to sustain a conviction. On the record, however, as it stands, the judgment below is reversed and the cause remanded. Higbee, C., concurs.