Opinion
December 12, 1928.
1. IMPEACHMENT: Immaterial Matter: Rebuttal. Witnesses cannot be impeached, nor their testimony rebutted, as to immaterial matters, unless the immaterial testimony is prejudicial and is voluntarily introduced by the opposite party upon the theory that it is material.
2. ____: ____: Connection with Still. The witness for the State, in the trial of a defendant charged with the unlawful manufacture of moonshine, having admitted that he participated in the operation of the still and in the manufacture of the whiskey, and that he moved or assisted in moving the still to the place where it was found by the officers, it was immaterial whether he or some other person moved it to the place where it was used in the manufacture of the whiskey; and the court did not err in refusing to permit a witness for defendant, after he had testified that the witness for the State had placed a still on the back of his truck, to testify that he hauled it to a place near where it was found by the officers.
3. MOONSHINE: Instruction: Broader Than Information. An instruction authorizing the jury to convict defendant upon a finding that he manufactured "hootch, moonshine, corn whiskey" is not broader than an information charging him with the manufacture of moonshine, where the evidence shows that he manufactured whiskey. Under the statute it is a felony to manufacture any kind of whiskey, and moonshine includes the corn whiskey denounced by the statute; and under the evidence the jury could not have been confused or misled by the instruction, or the defendant been prejudiced thereby.
4. ____: Synonymous Words: Instruction. The words "moonshine," "hootch," "corn whiskey," as used in the statute (Laws 1923, p. 242), are not synonymous. Moonshine includes the corn whiskey denounced by the statute, but it includes other liquors than corn whiskey. All illegal corn whiskey is moonshine, but all moonshine is not corn whiskey. And the same may be said of hootch. But all are illegal whiskey, and to find defendant guilty of manufacturing "moonshine, hootch, corn whiskey" is to find him guilty of manufacturing illegal whiskey.
5. PUNISHMENT: Assessment by Court: Information Conveyed by Deputy Sheriff. It is entirely proper for the jury, having agreed upon the guilt of defendant, but being unable to agree upon the punishment, to request the court to inform them if they can find the defendant guilty and the court assess the punishment; and where the request was conveyed to the court by the deputy sheriff in charge of the jury and the affirmative answer of the judge was orally delivered to them by the deputy, there was no error, the correction of the oral instruction not being challenged, nothing being said or done by the deputy sheriff other than to deliver the court's message to the jury, and the message having been given in open court in the presence of the defendant and his counsel. The method employed is not be approved, but it was not prejudicial.
Corpus Juris-Cyc. References: Criminal Law, 16 C.J., Section 2556, p. 1088, n. 28. Intoxicating Liquors, 33 C.J., Section 487, p. 749, n. 90; Section 547, p. 791, n. 43. Witnesses, 40 Cyc, p. 2770, n. 35.
Appeal from Douglas Circuit Court. — Hon. Fred Stewart, Judge.
AFFIRMED.
B.L. Rhinehart and Lz Banta for appellant.
(1) The court erred in excluding the evidence of Ernie Collins offered on part of the defendant, as said testimony tended to prove that the State witness Warren Perkins was the owner of the still and not Omer Collins. (2) The court erred in giving Instruction number one, for said instruction is broader than the information. 16 C.J. 1042; State v. Stratton, 289 S.W. 568. (3) The court erred in giving Instruction 1, as said instruction was broader than the evidence, and there was no evidence that the defendant had manufactured hootch or corn whiskey. (4) The court erred in instructing the jury that they could find the defendant guilty if they found that he manufactured hootch, moonshine or corn whiskey, as the information only alleges moonshine and the evidence only shows that if any intoxicating liquor were manufactured it was moonshine; hootch, moonshine and corn whiskey not being synonymous terms. State v. Pinto, 279 S.W. 144. (5) The court erred in permitting the deputy sheriff to instruct the jury out of the presence of defendant and defendant's counsel. 16 C.J. 1165, 1081; State v. Shipley, 171 Mo. 551.
Stratton Shartel, Attorney-General, and H.H. Blair, of counsel, for respondent.
(1) The verdict finds the appellant guilty as charged in the information and is sufficient. It is not error for the court to fix the punishment. Sec. 4048, R.S. 1919, as amended Laws 1925, p. 197; State v. Hubbs, 242 S.W. 675. (2) The evidence was sufficient to sustain the verdict. State v. Polson, 295 S.W. (Mo.) 743. (3) The testimony of Ernie Collins offered by appellant to contradict Warren Perkins's statement that Omer Collins owned the still was properly excluded. This was an attempt to impeach Perkins by showing the falsity of testimony immaterial to the issue. State v. Bunton, 280 S.W. (Mo.) 1040; State v. Long, 165 S.W. (Mo.) 748; Cooley v. Davis, 286 S.W. (Mo. App.) 412. (4) Instruction number one adequately declares the law and is sufficient. (a) It charges but one offense and does so in the words employed by the Legislature in defining the crime. Error should not be predicated upon the use of "hootch, moonshine, corn whiskey" in the instruction, even though the same words are not present in the information. The offense of manufacturing "moonshine" charged in the information is the same as the offense of manufacturing "hootch, moonshine, corn whiskey" charged in the instruction. "Moonshine" being a broader term than "hootch" or "corn whiskey" embraces them both and includes all illegally distilled liquor. State v. Griffith, 279 S.W. (Mo.) 135; State v. Pinto, 279 S.W. (Mo.) 144; State v. Knight, 300 S.W. (Mo.) 719. (b) The instruction is not broader than the evidence, which tends to prove that appellant was implicated in the illegal manufacture of whiskey. Both the information and instruction charge, in effect, that appellant illegally distilled this intoxicating liquor. Illegally manufactured whiskey is "hootch, moonshine, corn whiskey," or "moonshine." State v. Black, 289 S.W. (Mo.) 804. (c) The instruction could not have misled the jury because there was no evidence that appellant manufactured either "hootch," or "corn whiskey." There was no dispute as to what kind of intoxicating liquor was manufactured. All of the evidence introduced was to the effect that appellant made "whiskey." (5) It was not error for the court to transmit an oral instruction to the jury room by a deputy sheriff after it had been requested by the jury and given in open court before appellant and his counsel. Appellant does not object to the instruction or to the form in which it was given, but merely to the means used by the court in sending it to the jury. This is a matter which should rest in the sound discretion of the court. The method here invoked did not prejudice appellant's rights or deprive him of the safeguards which should surround the giving of instructions. 2 Graham Waterman, New Trials, 355; Dent v. King, 1 Kelly (Ga.), 200; Goldsmith v. Solomons, 2 Strobh. (S.C.) 296; State v. Hubbs (Mo.), 242 S.W. 675; State v. Daly, 210 Mo. 664.
An information was filed in the Circuit Court of Douglas County, in which appellant was charged with the unlawful manufacture of "moonshine." Upon trial, the jury returned the following verdict: "We the jury find the defendant Elmer Wood guilty as charged in the information but cannot agree on punishment." The court fixed his punishment at imprisonment in the penitentiary for two years, sentenced him accordingly, and he appealed.
The State's evidence shows that, sometime in June, 1927, a deputy sheriff, residing in the northeast part of Douglas County, located a still in that vicinity and telephoned the sheriff to that effect. The sheriff and two other deputies went to that section of the county and were directed to "a very brushy place on a rough hillside," where they "struck a path that had been traveled right fresh." After following this path about 200 yards, they saw the still and appellant and another man nearby. The other man was Warren Perkins, but the officers did not know him at that time. Upon discovering the approach of the officers, appellant and Perkins "went off on high" and fled in opposite directions. Appellant was halted and arrested. Perkins escaped, first, to Wrothwell's store, not far away, and, later, into Arkansas. Two or three months thereafter, he returned to Douglas County, was arrested, and testified for the State. The still was "in full blast, fired up with pine knots, with whiskey running out into a fruit jar." Three or four gallons of whiskey and seven or eight barrels of mash were found near the still. The mash and most of the whiskey were "poured out," the barrels and the boiler destroyed, and the worm and condenser and some of the whiskey were preserved for the trial. The sheriff identified these articles at the trial and explained how the different parts of the still were connected when he found it in operation. The jug containing the liquor was passed to the jury for their inspection. One of the sheriff's deputies said it was "whiskey," and that it was "intoxicating." It was referred to as "whiskey," throughout the trial, by counsel and witnesses on both sides of the case, and it is conceded by appellant, in his brief, that it was "moonshine whiskey." When arrested, appellant denied any connection with the still. He said he was making ties near there, and Perkins invited him "to come down and get a drink." He also said: "I am going to help you catch Perkins, and if he don't say it is his still, I will beat him half to death." A short while later, the officers, with appellant in their custody, stopped at Wrothwell's store, looking for Perkins. It developed later on that Perkins had gone to this store, made some change in his clothes, and was sitting on a bench in front of the store at that time, but appellant "never said a word about Perkins" at the store. Perkins, testifying for the State, said the still belonged to Omer Collins, and that he and Omer Collins and appellant had been making whiskey there for about two weeks. They had made three "batches" of whiskey, the first being taken by Omer Collins, the second by him (Perkins), and the third, seized by the officers, belonged to appellant. Each of them bought the materials for his own "batch" of whiskey, and they "swopped work." He was not promised immunity by anybody, but gave this testimony because "them fellows was trying to get Elmer Wood out of it and was laying it all on to me." On cross-examination, he said Omer Collins told him that the still was given to him (Omer Collins) by Perkins's brother after he (Perkins's brother) was "arrested and convicted." He admitted that he had made and sold whiskey prior to the time in question. And he also admitted that he and Jesse Woods moved the still to the place where the officers found it. He said they "wired it on a pole and carried it, taking it to Omer."
Appellant, testifying in his own behalf, said he had no interest in the still and no part in the manufacture of any liquor by use of the still. He had been making ties for about six months in the woods "about a half a quarter" from the still. Perkins had bought a car from him and had no title to it, and, on the day of his arrest, he went down to the still to get a drink and talk over the matter, at Perkins's request. He explained to the officers bow he happened to be there, and said he did not tell them it was Perkins's still, and did not see Perkins at Wrothwell's store after his arrest. He had visited the still a few days before that time with Louis Collins, when they went there to get a drink. On cross-examination, he said he ran when he saw the officers approaching the still "to keep from getting shot; thought running would beat standing."
One of appellant's witnesses testified that he had seen Perkins operating the still alone at the place where the officers found it. Another one said that Perkins offered him ten dollars to testify against appellant. And others said Perkins told them he felt sorry for appellant because he (appellant) had nothing to do with the still. The witness Ernie Collins testified that he saw this still once "before it was moved down where the officers found it;" that, while driving home from town one night, Warren Perkins stopped him along the road and "passed some old tank in the back end of the truck." Upon objection by the State, the court excluded further proof by this witness that Perkins stopped him and put a still on his truck, and that this witness hauled the still "down near to where it was found by the officers." This witness further testified that he hauled a load of ties for appellant a day or two before he was arrested.
Rebuttal testimony for the State and for appellant was in conflict as to whether or not any ties were cut or made in the woods where the still was found, at the time of appellant's arrest or shortly prior thereto.
I. Appellant contends that the trial court erred in excluding the testimony of the witness Ernie Collins to the effect "that sometime before the still was captured Warren Perkins Immaterial stopped this witness and put a still on his truck, Matter. and that this witness hauled the still down near to where it was found by the officers."
There is no merit in this contention. As shown in the above recital of the evidence, Perkins admitted his participation in the operation of the still and in the manufacture of the whiskey in question. He also admitted, on cross-examination, that he moved or assisted in moving the still to the place where it was found by the officers. Having thus admitted his connection with the moving and setting up of the still, and with the operation thereof, it is immaterial, so far as the issues of this case are concerned, whether he (Perkins), or, as he said, Omer Collins, or some other person owned the still; or when, or by what means, he moved it to the place where it was used in the manufacture of whiskey. And, in making this contention, learned counsel for appellant apparently overlook the fact that the court permitted them to prove by the witness Ernie Collins, as above stated, that Perkins stopped this witness along the road one night and "passed some old tank [the still] in the back end of the truck." In shutting off further inquiry at this point, as to an immaterial matter, the court excluded none of the proffered testimony of this witness except as to how far the still was hauled in the truck and as to the place where it was unloaded. It plainly appears, therefore, that, in the admission of testimony of this character, the rulings of the trial court were extremely liberal to appellant, rather than prejudicial. There was nothing in the proffered testimony which tended to impeach Perkins nor to rebut his testimony; but, even so, it is a well-established rule that witnesses cannot be impeached, nor their testimony rebutted, as to immaterial matters, except in instances where the immaterial testimony is prejudicial, and is voluntarily introduced by the opposite party upon the theory that it is material. That was not the situation in this instance. [State v. Long, 257 Mo. 199, 223, 165 S.W. 748, 756; State v. Bunton, 280 S.W. 1040, 1042.]
II. It is also contended that Instruction 1 is broader than the information and the evidence, and that the court erred in giving it, because it authorized the jury to convict Instruction: appellant upon a finding that he manufactured Broader Than "hootch, moonshine, corn whiskey," whereas, by the Information. information, he is charged with the manufacture of "moonshine," and is shown by the evidence to have manufactured "whiskey."
Under the statute here involved (Sec. 21, Laws 1923, p. 242), it is a felony to illegally manufacture any kind of whiskey. [State v. Wright, 280 S.W. 703; State v. Black, 289 S.W. 804.] It is true, as appellant contends, that the words "hootch," "moonshine," "corn whiskey," as used in this statute, are no longer held to be synonymous, though we did so hold in the case of State v. Brown, 304 Mo. 78, 81, 262 S.W. 710, 711. But, in the case of State v. Pinto, 279 S.W. 144, 147, wherein the opinion in the Brown case was modified, WHITE, J., said: "As a matter of common knowledge, moonshine is a name applied to other liquors than corn whisky. It is a broader term, and includes the corn whisky denounced by the statute. The same may be said of `hootch.' That is what we should have said in the Brown case as our understanding of the legislative intention. All illegal corn whisky is moonshine, but all moonshine is not corn whisky." As already indicated, the appellant is charged with the unlawful manufacture of "moonshine," and the evidence merely shows that he unlawfully manufactured "whiskey," without explanation as to its kind or character. Under the evidence, the jury could not have been confused nor misled by Instruction 1, nor could appellant have been prejudiced thereby. And, in view of our construction of the words "hootch," "moonshine," "corn whiskey," that is, that the words "hootch" and "moonshine" were intended, by the framers of the statute, to apply to any kind of whiskey illegally made, including "corn whiskey" so made, it cannot be said that this instruction, in legal effect, was broader than the information and the evidence, in authorizing a conviction in this case upon a finding by the jury that appellant unlawfully manufactured "hootch, moonshine, corn whiskey." It follows that no prejudicial error was committed in giving this instruction. In connection with the Pinto case and other cases above cited, see also, State v. Griffith, 279 S.W. 135; State v. Brown, 285 S.W. 995; State v. Knight, 300 S.W. 719.
III. Finally, appellant complains of the action of the trial court in permitting the deputy sheriff to tell the jury that "they could find defendant guilty and the court assess the punishment," in response to the jury's inquiry, through the deputy sheriff, as to whether or not that could be done.
As to what occurred in that connection, the record reads as follows:
"At request of defendant's counsel, the following was made of record in connection with matters which took place in the jury room immediately before the foregoing verdict was returned into court:
"BY THE COURT:
"During the deliberations of the jury in the jury room, the foreman requested the deputy sheriff in charge of said jury to inquire of the court if they could find defendant guilty and the court assess the punishment. Whereupon the court authorized the sheriff in charge of said jury to tell the jury that that could be done. Whereupon the jury returned into court the following verdict: `We, the Jury, find the defendant, Elmer Wood, guilty as charged in the information, but cannot agree on the punishment.' Signed by `J.G. Lethco, Foreman.' Whereupon the court fixed the punishment at two years in the State Penitentiary.
"BY MR. BANTA:
"Defendant, by his counsel, objects to the court permitting the deputy sheriff to speak to the jury and to instruct the jury out of the absence of the court and absence of the defendant and defendant's counsel.
"BY THE COURT: Objection overruled.
"The defendant, by his counsel, duly objected and excepted at the time."
This complaint does not challenge the correctness of the oral instruction given by the court to the jury, through the deputy sheriff, nor the integrity of the verdict, but merely the method employed by the court in conveying to the jury the information requested by them, through their foreman. It does not appear, nor is it even claimed by appellant, that anything was said or done by the deputy sheriff other than that he delivered to the jury the court's message or oral instruction, as he was directed to do by the court. Manifestly, the message or instruction in question was given to the deputy sheriff, for delivery to the jury, in open court, and in the presence and hearing of appellant and his counsel. It was entirely proper for the jury to request such information, and for the court to give it, when so requested. Furthermore, it should not even be suggested that the deputy sheriff might have said or done something to influence the verdict, because, obviously, the jury had already agreed on their verdict, as to appellant's guilt of the offense charged, at the time they communicated with the court through the deputy sheriff. Subject to certain statutory limitations, the conduct of trial proceedings and the handling of juries rests very largely in the sound discretion of the trial court. It is the duty of the sheriff and his deputies to assist the trial court in such matters, and also to act as messengers for the court in communicating with the jury while the jury are engaged in deliberating on their verdict. And, while it is the better and safer practice, and the practice ordinarily followed, for the court to give all of its instructions to the jury, either written or oral, in open court and with the jury before the court at the time, we have no hesitancy in saying that, under the circumstances above mentioned, the court did not abuse its discretion in delivering to the jury, through the deputy sheriff, the information or instruction requested by the jury. To rule otherwise on this complaint would be, as said by GANTT, P.J., in the case of State v. Shipley, 171 Mo. 544, 550, 71 S.W. 1039, "to ignore all proper distinctions and the dictates of common sense." See also, State v. Daly, 210 Mo. 664, 681, 109 S.W. 53.
The information is in approved form, the verdict is responsive to the issue presented to the jury, the evidence is amply sufficient to support the verdict, and our examination of the record discloses no error.
The judgment is affirmed. Higbee and Davis, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. White, P.J., and Walker, J., concur; Blair, J., not sitting.