State v. Mulroy , 152 Minn. 423 ( 1922 )

Haudam, J.

Defendant was convicted of the crime of illegal manufacture of intoxicating liquor and he appeals.

The evidence is ample to sustain the verdict of guilty. Defendant assigns certain errors in the conduct of the trial.

Exception is taken to the limitation placed upon the examination of prospective jurors. Objections were made and sustained to these questions: “Are you or have you ever been a member of any society or company or association which had for one of its objects the prohibition of the liquor traffic?” ‘Did you attend a meeting held in this city lately at which the matter was discussed of the enforcement of the law in these cases now on trial of which this case is one?” “Have you taken any part of any kind, either as an individual or as a member of any society, for the enforcement of the liquor laws in this community?” The court was advised that the questions were asked in order to enable defendant to intelligently exercise his peremptory challenges. Doubtless the court should have permitted the jurors to answer these questions. The court was making a laudable effort to expedite the examination of jurors so often too protracted and in so doing restricted too much the examination. Still the case should not be reversed if it appears from the whole record that the defendant could not have been prejudiced. State v. Williams, 96 Minn. 351, 105 N. W. 265. There is no showing or intimation that the jury which tried defendant was not in all respects a fair jury, nor that the examination if permitted would have elicited any facts that would have made a peremptory challenge of any juror desirable. And in view of the conclusive character of the evidence in this case it is impossible to see how the defendant could have been prejudiced, for fair men could hardly arrive at different conclusions as to defendant’s guilt.

The sheriff and three deputies and a Federal agent came to defendant’s house with a search warrant. They caught defendant in the possession of a fully equipped still fitted up in connection with a kitchen stove. At the sight of the officers defendant hastened the still into the bedroom where he concealed it behind the bed and covered it with a fur coat. In the kitchen were two 52-gallon barrels of “mash,” highly charged with alcohol and in condition to be distilled into whiskey, and also 5y2 gallons of finished whiskey containing more than 46 per cent of alcohol. Defendant’s explanation of the possession of all this was simply ludicrous. The still, which he called a “fruit cooker,” he said he used to distill water for his family. The whiskey with 46 per cent alcohol he said was simply water, colored for the children to drink, colored with “extract of rye” that “the Mrs.” had put in “so the children would drink it and make it little different taste,” because the distilled water “would taste kinda flat and sickening.” The “mash,” so heavily charged with alcohol, was simply cracked corn and a little pea meal in water which he prepared for his hogs, and he kept it in the house “so the Mrs. could throw the slop away into these barrels” and would not have to carry it out of the house. It is significant that “the Mrs.” was not called as a witness to corroborate this story nor were any of the children.

The evidence of guilt is so clear and overwhelming that that we are of the opinion that the restriction of the examination of the jurors does not warrant a reversal.

Exception is taken to some portions of the charge of the court.

We have examined the charge with care. At its inception the court emphasized the presumption of innocence which follows the defendant through every stage of the trial until evidence establishes his guilt beyond a reasonable doubt. He admonished them that they were the sole judges of the disputed facts, and that they must not take it from anything he might say that he indicated to them what evidence they should accept, for any dispute was for them alone to decide. He then said: “In view of the extraordinary argument that has been made in this case I deem it proper for me to refer to some of the matters. It has been stated to you that every person should be secure in his home. Now * * * I want to charge you that there is no evidence of any right of Mr. Mulroy’s having been violated by any of these officers.”

He then said they had had their attention called to the fact that state and national government is pitted against defendant and said while this is true every safeguard is thrown around the accused so that all his rights are protected, that an innocent man is protected by our courts. He then said statement had been made that “not all of the evidence found was brought into this case and that should weigh with you. Now, gentlemen, that should not weigh in your mind the least. Under the Federal law it is the duty of the Federal officer when he finds any of this liquor that has been manufactured in violation of the law * * * to destroy all of that liquor except what he wants to preserve for evidence in the case of, a prosecution. It was not necessary for the state to bring in those 140 gallons of mash. * * * It * * * would not have been allowed. * * * All that was necessary for the state to bring in was enough to satisfy disinterested jurors of the fact that it was liquor that they found there.” He then said something has been said about a search warrant as if that had been violated. That was not from this court and was returnable to another court and the presumption is that everything that was required was done in that court.

He charged that much had been said about the chemist’s testimony and after referring to the conflict of testimony and charging the jury that it was for them to determine what to receive or to discard, or to reject, he told them if there was any evidence to contradict that of the chemist then they had a right to reject his testimony, otherwise they had “no right to reject the testimony of him or any other witness unless it is contradicted.”

Some of the language might better have been omitted. Reference to the argument as “extraordinary argument” should have been omitted, though it did appear that some of the argument was unfounded. The statement that the Federal law required the officers to destroy any part of the liquor taken was erroneous, except as they might have an order of court therefor. The reference to the chemist’s testimony is unnecessarily specific, yet when we read the whole charge we are impressed with the idea that the court tried to present the case with fairness to the state and to the defendant and that there was no failure in this regard that could prejudice the rights of defendant. Several times in the charge the court impressed the burden of the state to prove guilt beyond a reasonable doubt. Once in connection with this charge he warned that “very often the reasonable doubt is abused * * * because you want to carry that too far.” This might better have been omitted, but there followed immediately an instruction full and correct on this subject which could have left no doubt in the minds of the jurors as to what was their duty.

We find no prejudicial error in the case.

Judgment affirmed.