Opinion
December 1, 1931.
1. APPELLATE JURISDICTION. The offense charged and of which defendant was convicted being a felony, appellate jurisdiction is in the Supreme Court, although his punishment was assessed at a fine and imprisonment in the county jail.
2. INFORMATION: Felony: Prior Conviction of Misdemeanor. In a prosecution for the felony of selling corn whiskey, it is not permissible to charge prior convictions of violation of the misdemeanor provisions of the statute, such as unlawful possession.
3. ____: Selling Corn Whiskey: No Evidence: General Verdict: Instruction. Where defendant was charged with the sale of corn whiskey, and there was no evidence that the liquor sold was corn whiskey, a verdict of guilty cannot stand; and where the court did not submit the felony charged, but gave instructions directing a general verdict of guilty if the jury found that defendant had sold whiskey, both the instructions and verdict of guilty "as charged" are unauthorized.
4. ____: Charged With Selling Corn Whiskey: Necessary Proof: Demurrer. The sale of lawfully manufactured whiskey is not made a felony by the statute (Sec. 4500, R.S. 1929), as is the sale of corn whiskey. "Corn whiskey," as used in the statute, means illegally manufactured corn whiskey. The sale of lawfully manufactured whiskey is not included in a charge of selling corn whiskey, nor is the sale of lawfully manufactured whiskey a lower degree of the offense of selling corn whiskey. Proof that defendant sold whiskey is not alone proof that he sold corn whiskey; and where the charge is that he sold corn whiskey, and there is no evidence that the whiskey sold was corn whiskey, a demurrer to the evidence should be sustained.
5. ____: ____: Evidence: Visitors to Defendant's Residence. Evidence tending to show that the residence of defendant, charged with selling corn whiskey, was frequently visited by divers persons, and that he was not actively engaged in farming, should be excluded, and the proof limited to evidence tending to prove the specific sale charged.
Appeal from Henry Circuit Court. — Hon. W.L.P. Burney, Judge.
REVERSED AND REMANDED.
Floyd L. Sperry, Vance Julian and Jones Wesner for appellant.
(1) There was a fatal variance between the allegations of the information and the proof offered thereunder. (a) Defendant was charged with the sale of corn whiskey, a felony, under Sec. 4500, R.S. 1929. Two prior misdemeanor convictions were alleged in the information by virtue of Sec. 4524, R.S. 1929. This practice has been condemned by this court. State v. Tracey, 320 Mo. 568. Even though defendant did not move to strike the allegations of former convictions, nor object to introduction of evidence, the verdict is not responsive to the pleadings. (2) Proof of the sale of corn whiskey cannot be made except by direct and positive evidence to that effect. State v. McMillen, 39 S.W.2d 559. A verdict of "guilty as charged" cannot support a judgment, as no such verdict can be assessed under Sec. 4500, R.S. 1929. Nor will it do to say that he was charged with a felony which includes the misdemeanor of which he was convicted. Corn whiskey was singled out by the Legislature as being a particular grade or kind of whiskey for specific and grave condemnation. It is one of a group of products, all of the group being included under the general terms of "whiskey," but logic will not permit the greater term, the more general term to be included in the lesser or more specific term. State v. Hancock, 7 S.W.2d 273; State v. Kroeger, 321 Mo. 1068; State v. Stratton, 289 S.W. 568. The trial court should not have permitted the case to go to the jury.
Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.
(1) The record shows proof only of the misdemeanor of selling "whiskey," and not of the felony charged of a sale of "corn whiskey." Under State v. Kroeger, 321 Mo. 1063, this seems to be a fatal variance, for which the defendant's demurrer to the evidence should have been sustained, and therefore a reversal and remand is now required. As our statutes seem to classify "corn whiskey" as a different kind of intoxicant from "whiskey," we do not see that a reversal can be avoided by regarding the offense proved as a lesser degree of the offense charged under Sec. 3701, R.S. 1929, even though the proof showed the "whiskey" sold to be intoxicating, if that were necessary. Furthermore, even were the felony charge regarded as sustaining a conviction of the misdemeanor proved, the state of the record as now here precludes the contention of no reversible error therein. (2) We cannot say that defendant's overruled objections to the evidence of many motor cars having gone to defendant's premises and beaten a traveled road to them, without any showing for what purpose or exactly when, were not well taken, or that this evidence was not prejudicial to a defendant charged only with selling corn whiskey, and not with maintaining a nuisance, as insinuated, but not proved. (3) The defendant did not object to the prosecutor's recital of the former convictions of misdemeanor, as he might have done, or really should have asked to be stricken from the information, but we concede that his objections were well taken to the opening statements referring to many motor cars going to the defendant's place at all hours of day and night, and also that an injunction suit had later been brought against the defendant, for which recital of irrelevancies and of injunction proceedings against defendant, the jury might well have been discharged and a venire denovo then and there awarded. (4) The State's instruction "B" seems to have been an attempt to conform to Sec. 4524, R.S. 1929, without asking the jury to find the former convictions, which, however, were admitted by the defendant in the trial, but, of course, the charge proved of selling "whiskey" should have been made under Sec. 4481, but was made of selling "corn whiskey" under Sec. 4500, to the penalties of which the instruction does not correspond.
Defendant was charged by information with the felonious sale of one pint of corn whiskey, an offense denounced as a felony by Section 4500, Revised Statutes 1929. The information also charged two prior convictions of unlawful possession of "intoxicating liquor." Defendant was tried and convicted, the jury returning the following verdict: "We the jury find the defendant guilty as charged and assess his punishment at a fine of one thousand ($1000) dollars and one year in the county jail." From sentence and judgment upon the verdict he appealed, the appeal being granted to the Kansas City Court of Appeals. The latter court transferred the cause to this court on the ground that, the offense charged and of which defendant was convicted being a felony (see Sec. 4471, R.S. 1929), appellate jurisdiction is in the Supreme Court; a conclusion in which the Court of Appeals was right. [State v. Dalton (Mo.), 289 S.W. 569.] The transcript originally filed did not contain a properly certified bill of exceptions. That deficiency has been supplied by leave of this court and the whole record is now before us.
The State introduced evidence tending to show a sale of "whiskey" by defendant at the time and place named in the information, but there was no evidence tending to prove that the liquor so sold was "corn whiskey" or that it was illegally manufactured whiskey. Defendant at the trial admitted one prior conviction of the misdemeanor of unlawfully possessing intoxicating liquor and the record of another such conviction was introduced. The trial court did not submit to the jury the offense of selling "corn whiskey," but submitted the case upon an instruction directing that if the jury found that the defendant had sold one pint or any quantity of "whiskey" and that the same was intoxicating, he should be found guilty and his punishment assessed "at a fine of one thousand dollars and imprisonment in the county jail for a period of one year."
I. We have held that in a prosecution for felony under this statute it is not permissible to charge prior convictions of violation of the misdemeanor provisions of the prohibition law such as were here charged. [State v. Tracy, 325 Mo. Information: 568, 29 S.W.2d 159.] It is suggested in the Waiver. State's brief that the information sufficiently charges the sale of corn whiskey and that since the information was not challenged before trial and no objection was made to the evidence offered to prove said prior conviction the error was waived and cannot now be urged as reversible. Since the judgment must be reversed on other grounds we need not discuss the question thus suggested further than to observe that under the instructions given the fact of the prior convictions affected the extent of the punishment assessed. In the event of another trial the charge of prior convictions of misdemeanors should be omitted.
II. While the court did not submit to the jury the felony charged in the information the instructions directed a general verdict of guilty if the jury found that the Instruction: defendant had sold "whiskey." Defendant was charged Verdict. with the sale of corn whiskey and the verdict was "guilty as charged." The evidence does not support that verdict, there being no evidence that the liquor sold was corn whiskey. [State v. Kroeger, 321 Mo. 1063, 13 S.W.2d 1067.] Obviously for that reason the verdict cannot stand.
III. Defendant asked and the court refused an instruction in the nature of a demurrer to the evidence. Error is assigned in that ruling. We think the demurrer should have been Demurrer. sustained. The statute makes the sale, transportation, etc., of "hootch, moonshine, corn whiskey" a felony and expressly provides that it shall not apply "in case of corn whiskey lawfully manufactured, transported or sold." Whiskey, that is, lawfully manufactured whiskey, is thus by express provision of the statute excluded.
The term "corn whiskey" as used in the statute means illegally manufactured corn whiskey. It matters not by what name it is called, the liquor referred to in Section 4500, supra, the sale of which is made a felony, is a different commodity Corn from whiskey lawfully manufactured, the unlawful sale Whiskey. of which would be only a misdemeanor. See State v. Kroeger, supra, where this subject was fully considered by the court en banc. In view of the statute and the construction we have uniformly given it, it cannot logically be said that the sale of "whiskey" is included in a charge under this statute of selling "corn whiskey" or that it is a lower degree of the offense charged. We have heretofore in effect held that selling or giving away "whiskey," a misdemeanor, is not included in a charge under this statute of selling or giving, etc., the liquors named in the felony statute.
In State v. Stratton (Mo.), 289 S.W. 568, the defendant was charged under this statute with giving away moonshine whiskey. The proof tended to show that he had given away whiskey. It was held that the court should not have submitted the case to the jury "under the indictment found and the proof made."
In State v. Gatlin (Mo.), 267 S.W. 797, the defendant was charged with transporting hootch, moonshine and corn whiskey. The proof tended to show that he had transported whiskey, the unlawful transportation of which, under other provisions of the prohibition law, would be only a misdemeanor. It was held that the trial court had erred in overruling the defendant's demurrer to the evidence.
In State v. Hancock (Mo.), 7 S.W.2d 273, the defendant was charged with felonious transportation of hootch, moonshine, corn whiskey, and was found guilty of " possessing moonshine liquor as charged in the information." (Italic ours.) This court said:
"The offense charged is a felony, as defined by Section 21, Laws 1923, page 242, and the offense of which appellant was found guilty is a misdemeanor, as defined by new Section 6588, Laws 1921, page 414. It is therefore apparent, on the face of the record, that appellant was charged with one offense and convicted of another offense . . . The defect in this verdict is not a mere informal one which is corrected by the Statute of Jeofails. [Sec. 3908, R.S. 1919.] Nor is the offense charged one of a class of related offenses, in which a person may be charged with one offense and convicted of another or lesser offense, as provided in Sections 3690, 3692, 3693, Revised Statutes 1919" (now Secs. 4449, 4451, 4452, R.S. 1929). (Italics ours.)
The logic of the situation and of our holdings in the three cases last above cited, as well as the reasoning in the Kroeger case, supra, is that a charge of selling lawfully manufactured whiskey is not included in a charge under Section 4500, supra, of selling corn whiskey, and that, therefore, a person charged under that section with the felony of selling corn whiskey cannot be convicted under such indictment or information of the misdemeanor of unlawfully selling whiskey. It follows that in this case the court erred in submitting the case to the jury on instructions authorizing conviction, as for a misdemeanor, upon the evidence tending to show only a sale of whiskey.
IV. In the opening statement to the jury reference was made by the prosecuting attorney, over defendant's objection, to an injunction suit filed against defendant, and considerable evidence was introduced, over defendant's objections, tending to show that his residence was visited with considerable frequency by divers people and that he was not apparently carrying on very active farming operations. He lived in the country, apparently a tenant of a small place the extent of which does not appear clearly in the record. That evidence was probably offered for the purpose of raising a suspicion or an inference that the defendant was engaged in the business of selling liquor illegally rather than in farming or other honest occupation. It should not have been admitted. Defendant was charged with a specific sale and the proof should have been limited to evidence tending to prove that sale.
The State on another trial, if it elects to try the case again, may be able to supply proof, lacking on this trial, that the liquor sold was corn whiskey. We shall therefore remand the cause for such further proceedings as the State may be advised to take.
The judgment of the circuit court is reversed and the cause remanded. Westhues and Fitzsimmons, CC., concur.
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All of the judges concur.