State v. Kroeger

BLAIR, J. Defendant was convicted in the Circuit Court of Pettis County of the felony of selling corn whiskey, in violation of Section 21, Laws of 1923, page 242. The jury assessed his punishment at imprisonment in the state penitentiary for a term of two years. He was sentenced on such verdict and has appealed to this court. A dissent in Division Two brought the case here. The sole ground for reversal of the judgment urged by counsel is that the trial court should have directed a verdict of not guilty on the ground that the evidence failed to prove that defendant sold corn whiskey, as charged in the indictment. This makes necessary a brief statement of the evidence. The indictment charged the date of the alleged sale as “on or about the-day of November, 1926.” Four young men testified. They were Jewell Hull, seventeen years old; Jack Yeater, sixteen years old; Tom Yeater, fifteen years old, and Earl Romig, whose age does not appear. Jack and Tom Yeater were brothers. Jewell Hull testified to the purchase of a pint of “whiskey” at a filling station in Sedalia, operated by one “Big Bill.” There was testimony tending to show that defendant and Big Bill were one and *1066 the same person. Hull failed to identify defendant as tbe person who sold the liquor. He fixed the time of the sale as sometime after dark on a Saturday night in the summer time in 1926, about “fair time.” (Evidently referring to the Missouri State Fair.) He said the boys present beside himself were Sam Freund, Jack Yeater and Ear! Romig. Hull’s testimony did not tend to show a sale of whiskey by defendant, or that the whiskey sold was “corn whiskey,” as charged in the indictment. Earl Romig testified to the purchase from defendant at the same filling station of a pint of “whiskey.” He fixed the time as a Saturday night about eleven o’clock “sometime last fall” (1926). He said it was after “fair time.” He gave the names of those present besides himself as Jewell Hull, Jack Yeater and Casey Morris. If he ivas testifying about the same sale to which Jewell Hull testified, he substituted Casey Morris for Sam Freund as one of those present. Neither Morris nor Freund testified. Romig’s testimony tended to prove that defendant sold whiskey, but failed to prove a sale of corn whiskey. Jack Yeater testified that he was present twice when whiskey was purchased at Big Bill’s filling station. He gave no details about the first sale, but fixed the date of the last one as September (1926), about 61:30 or 7:00 o’clock on a Saturday night. He said that the sale of a quart of “whiskey” occurred at that time. He refused to swear that the sale was made by defendant and failed to testify that the liquor was corn whiskey. He said the boys present at that time besides himself were Jewell Hull, Tom Yeater and Sam Freund. Tom Yeater testified that he was present at the filling station only once when liquor was purchased and gave the same names mentioned by Jack Yeater as comprising those present. He said they bought a quart of “corn whiskey, supposed to be.” While this testimony may be said to tend to prove a sale of corn whiskey, the witness testified positively that defendant was not the man who sold the corn whiskey. Jewell Hull and Earl Romig apparently were testifying about two separate sales, because the one said Sam F.teund was present and the other said' Casey Morris was present and neither testified to the sale of corn whiskey by defendant. Romig’s testimony tended to show a sale of “whiskey” by defendant. Hull failed to identify defendant as the man mailing the sale of whiskey concerning which he testified. Even though we take the testimony of Tom Yeater as sufficient to prove a sale of corn whiskey, that witness denied that defendant made such sale. Jack Yeater apparently was testifying to the same sale. At least the jury might have found so. Yet, Jack Yeater’s testimony was not sufficient upon which to base a finding that defendant made the,sale. We have carefully studied the brief record in this case and must conclude that, while the evidence was sufficient to authorize the jury *1067 to find that defendant sold whiskey at the time and place alleged in the indictment, it was not sufficient to prove that the whiskey so sold was corn whiskey. It only remains then to determine whether proof that defendant sold “whiskey” is sufficient to support his conviction upon the charge of selling “com whiskey.” Section 21, Laws of 1923, page 242, makes it a felony for any person to sell “hootch,” “moonshine,” “corn whiskey.” These beverages had previously come within the term “intoxicating liquors,” the sale of which was made a misdemeanor by Section 6588, page 434, Laws of 1921 (Regular Session). The sale of intoxicating liquor, except hootch, moonshine or corn whiskey, is still only a misdemeanor in this State. The 1921 Act was not repealed by the 1923 Act, except in so far as conflict exists between the two acts and except as to the particular sections expressly named in Section 29, Laws 1923, page 247. The sale of intoxicating liquor is a felony only when the liquor so sold is hootch, moonshine or corn whiskey. We have ruled that “moonshine” is whiskey unlawfully manufactured. [State v. Pinto, 312 Mo. 99, l. c. 109, 279 S. W. 144; State v. Griffith, 311 Mo. 630, l. c. 641, 279 S. W. 135.] By the express language of Section 21, page 242, Laws of 1923, the sale of corn whiskey lawfully manufactured, transported or sold, does not come within the inhibition of said section and hence its sale is not a felony. It necessarily follows that the sale of whiskey, including corn whiskey, which has not been unlawfully manufactured, is still only a misdemeanor. Appellant was charged with the felony of selling corn whiskey, which means the selling of corn whiskey unlawfully manufactured. If the proof had been that appellant sold corn whiskey, it would have been for him to offer evidence tending to prove that the whiskey so sold was lawfully manufactured. [State v. Naething (Mo. Sup.), 300 S. W. 829, l. c. 832; State v. Gatlin (Mo. Sup.), 267 S. W. 797.] Likewise, upon a charge of soiling “moonshine,” if there was evidence tending to prove that the liquor sold was in fact moonshine, the State would' not be required to prove, as a part of its case, that such whiskey was unlawfully manufactured. The negativing of that fact would also be a matter of defense for the accused. Going a step further, it would seem that, if the proof was that the whiskey sold was in fact unlawfully manufactured, such proof would sustain the charge of selling “moonshine,” because all unlawfully manufactured whiskey is “moonshine.” [Pinto and Griffith cases, supra.] But it is inconceivable that mere proof by the State that the accused sold whiskey would be sufficient to put the burden upon the accused of showing that such whiskey was lawfully manufactured, in order for him to escape conviction for a felony, or that, by reason of such proof alone, the grade of his offense, and hence the character of his punishment, could be made to depend upon the success of his effort to convince the iurv that such whiskey was lawfully manu- *1068 factored. The State must prove, as part of its case, that the liquor sold was of the character described in Section 21, Laws of 1923, page 242, before it is entitled to convict the accused of a felony. If the charge be selling’ “moonshine,” the proof must be that the liquor sold was moonshine or was whiskey unlawfully manufactured. If the charge be selling “corn whiskey,” the proof must be that the liquor sold was in fact corn whiskey. Here the only charge was selling “corn whiskey,” not “hootch” or “moonshine.” The terms are not synonymous. [State v. Pinto, supra.] Though we should hold, as it seems we could not property hold, that mere proof of a sale of whiskey would be sufficient to support a charge of selling “moonshine,” yet even then such proof clearly would not be sufficient to sustain a charge of selling corn whiskey. Such is this ease. The proof that appellant sold whiskey, without evidence tending to show the character of such whiskey, was proof tending to show that appellant was guilty of a misdemeanor only. He was therefore improperly convicted of a felony under such proof made. [State v. Gatlin, supra; State v. Stratton, 316 Mo. 240, 289 S. W. 568.] The judgment is reversed and the cause remanded. Ragland, Atwood, Gantt and Frank, JJ., concur; White, G. J., concurs in a separate opinion in which Ragland, Gantt and Frank, JJ., concur; Walker, J., dissents in a separate opinion.