State v. Frazier.

COX, P. J. Defendant was charged by information with violating the prohibition law. The information was in three counts: The first count charged defendant with having in his possession “a certain doubler, worm, fermenting tub, mash tub and still.” The second count charged the manufacture of intoxicating liquor. Defendant was acquitted on the second and third counts and convicted on the first count. The appeal is from that conviction. The error complained of relates to the instruction for the State which told the jury that if they should find that defendant had in his possession “a certain doubler, worm, fermenting tub,- mash tub or still which said doubler, worm, fermenting tub, mash tub- or still or any of said articles were then and there fit to be used and capable of being used in the production of intoxicating liquor,” they would convict. The verdict was a general verdict of guilty as charged in the first count. The point made against the instruction is that it authorizes a conviction on a finding that defendant had in his possession either of the articles named and since the verdict was a general one and did not specify what articles the jury believed the defendant had in his possession, it could not be known whether the jury all agreed in their finding, as some may have believed he had one article in his possession and others disbelieved that, but believed that he had some other article named in his possession. In such a case if the question of possession of all the articles is submitted to the jury and they are required to find that defendant had possession of all in order to convict, it is good. If the question of possession of only one article is submitted and the jury is required to find possession of that particular article in order to convict, it is good; but if possession of more than one article is submitted and a conviction is authorized upon a finding of possession of either all or one or more of *527 the articles, then the jury should be instructed that in case they should find defendant guilty, they should specify in the verdict the articles which they find from the evidence defendant had in his possession. [State v. Washington, 242 Mo. 401, 146 S. W. 1164; State v. Geist, 126 Mo. App. 393, 195 S. W. 1060; 199 S. W. 1041; State v. Gray, 203 Mo. App. 547, 553.] In this case there was no evidence that defendant had a doubler or a still in his possession. There was evidence that he had possession of grape mash. This mash was in an ordinary rain barrel and not in a mash tub as that term, is used in the statute. [State v. Hyde, 248 S. W. 920.] There was, therefore, no evidence that he possessed a mash tub, though, evidently, the court and jury considered the barrel containing the grape mash as a mash tub. There was evidence that he had in his possession a coil of copper pipe which the State’s witnesses described as a worm and which they testified could be used as a worm in the manufacture of intoxicating liquor. Defendant’s evidence was to the effect that this copper pipe was so short that it could not be used in the manufacture of intoxicating liquor. In charging an offense of this kind the pleader may charge possession of all the articles named in the statute but in giving'instructions to the jury the trial court should keep in mind the fact that the instructions must be based on the evidence and no issue should be submitted to them that is not supported by some evidence. In this case there was no evidence that defendant had in his possession a doubler, a mash tub or a still. The question of the possession of either of these articles should not have been submitted to the jury. The only articles of which there was sufficient evidence of possession by defendant to warrant their submission to the jury were a worm and mash. In submitting these the jury should have been required in oase of conviction to state in their verdict which one, or both if they should *528 so find, they should find to have been in the possession of defendant. On a retrial, if the court will follow the rule as stated in the cases of State v. Hyde, and State v. Washington, supra, there should be no difficulty in drafting correct instructions to the jury. If the jury should find that the copper pipe could not be used in the manufacture of intoxicating liquor then its possession would not be unlawful. If defendant had the grape mash in his possession for the purpose of making grape juice to be used in making jelly or grape butter and not for the purpose of making wine his possession of that mash would not be unlawful. Those matters, however, were matters of defense and the burden was not on the State to show that defendant had them in his possession for an unlawful purpose. If defendant wished instructions on that theory he should have asked for them. [State v. Shelton, 248 S. W. 980] The judgment will be reversed and the cause remanded. Bradley, J., concurs; Bailey, J., not sitting.