State v. Kroeger , 321 Mo. 1063 ( 1929 )

I do not concur in the conclusion reached by my learned brother, Judge BLAIR, in holding that a charge of selling corn whiskey is not sustained by proof of a sale of whiskey.

I. In support of this holding the majority opinion cites State v. Gatlin, 267 S.W. (Mo.) 797, and State v. Stratton, 316 Mo. 241. In the Gatlin case the learned CommissionerWhiskey urges no reason and cites no authority to sustainIncludes his conclusion, but simply declares that theCorn Whiskey. evidence was that the jugs and jars transported contained whiskey and that this was no evidence that they contained corn whiskey, and hence the court erred in overruling a demurrer to the evidence.

In State v. Stratton, 316 Mo. 240, the charge was the giving away of moonshine whiskey and it was held that the proof that the whiskey was "as good as bottled in bond whiskey" would not sustain the charge. The indefiniteness of this testimony was sufficient to authorize this ruling without the implication that proof of the giving away of whiskey would not uphold a conviction.

Conceding, however, that these cases sustain the holding in the Kroeger case, I am of the opinion, both in reason and under the authority of other rulings of this court, that the holding by Judge BLAIR in the Kroeger case is too narrow.

Whiskey, as defined and as uniformly regarded in this country, is an alcoholic liquid obtained by the distillation of the mash of fermented grain, usually either corn, rye, wheat or barley. The term is, therefore, generic, and while the prohibitory statute is directed in terms against hootch, moonshine and corn whiskey, each of these is whiskey. The first being a slang designation of the general term; the second indicative of the time or conditions under which the liquor was made, and the third, the ingredient used in its manufacture. The purpose of the statute was evidently not to necessarily limit the prohibitory ban upon these liquors as specifically designated, but to forbid the manufacture, possession, gift or sale of whiskey. Whether, therefore, it be called hootch, moonshine, booze, white mule, mountain dew or coffin varnish in the vernacular of the underworld, or that it was made in April's ivory moonlight, beneath the oak tree's shade, or that it was distilled from dextrose or the blood-quickening juice of the fermented corn, it is, in its last analysis and under its generic title, simply whiskey. In the instant case, therefore, where the sale charged was that of corn whiskey and the proof was that of the sale of whiskey, it should be held to be a felony, punishable under Section 21, Laws 1923, page 242. We have held, and I think correctly, that the terms used in the statute were synonymous (State v. Brown, 304 Mo. 78); or in other words, that they each designate spirituous liquor, illegally distilled or manufactured. [State v. Cook, 3 S.W.2d 365; State v. Vesper, 289 S.W. (Mo.) 862.] This holding was based upon the well founded reason that these terms were but specific designations of the general term, whiskey.

In State v. Wright, 312 Mo. 626, 280 S.W. 703, in which the opinion is subsequent to our ruling in the Gatlin case, we held where an information charged the manufacture of corn whiskey and the proof was that the defendant was guilty of manufacturing whiskey that a verdict and judgment was authorized convicting him of a felony under Section 21, Laws 1923, supra. The purpose of the law is clearly and wholesomely considered in the Wright opinion, to this effect: "that where an information charges the unlawful manufacture of hootch, moonshine, corn whiskey or any other kind, proof of the manufacture of whiskey, without designating the brand, will warrant a conviction of a felony." "We take" says that opinion "judicial notice of the fact, without allegation or proof, that whiskey is intoxicating liquor and that it is generally used as a beverage." The reasoning of the learned Commissioner (p. 632) is relevant in this connection in support of a conviction for the manufacturing of whiskey under the facts in that case, parallel with those in the Kroeger case.

In State v. Wright, 291 S.W. (Mo.) 1078, in an opinion by BLAIR, J., under a charge for the sale of corn whiskey, although it was shown that the defendant sold a witness white corn whiskey, this relevant comment was made by the learned author of the opinion: "Appellant told Curtis that he was making whiskey. The liquor was unlawfully manufactured whiskey. The foregoing testimony alone made a case to go to the jury on the second count, ``which charged an unlawful sale of corn whiskey.'"

The cases of the State v. Wright, 312 Mo. 626, supra, and that of State v. Griffith, 311 Mo. 630, 279 S.W. 135, are cited in support of the correctness of the conclusion relating to the sufficiency of the testimony in the last cited Wright case.

In State v. Vesper, 289 S.W. (Mo.) 862, a charge of manufacturing hootch, moonshine or corn whiskey was affirmed on proof of the unlawful distilling of alcohol from denatured alcohol. In commenting upon the sufficiency of this testimony to sustain a conviction, Judge BLAIR said (p. 863) that: "All intoxicating liquor illegally distilled for beverage purposes is hootch, moonshine or corn whiskey." By parity of reasoning and in harmony with the purpose of the statute the converse of this conclusion is true, that the liquors designated in the information are whiskey.

In State v. Sandoe, 316 Mo. 55, 62, RAILEY, C., speaking for the court, in affirming a conviction under a charge for manufacturing hootch, moonshine or corn whiskey, in discussing the contention of the appellant "that there was no evidence given or offered by the State proving or tending to prove the intoxicating liquor alleged to have been made by defendant was corn whiskey," said: "Sheriff Smith testified that he tasted the whiskey in controversy and that it was corn whiskey. The evidence conclusively disclosed that defendant was engaged in unlawfully manufacturing whiskey. . . . It was immaterial whether he was making corn whiskey, as he was guilty if he made any kind of whiskey on said occasion. [State v. Wright, 280 S.W. 703; State v. Brown, 285 S.W. 995-6.]" Although the proof in the Sandoe case that the liquor made was corn whiskey, the reasoning and conclusion of the court is that if defendant made any kind of whiskey he was guilty, under the statute, and that it was unnecessary to prove that it was corn whiskey, despite the charge that he made hootch, moonshine and corn whiskey.

In State v. Black, 289 S.W. (Mo.) 804, in sustaining a conviction for felony under a charge of selling hootch, moonshine or corn whiskey, it was held (p. 805) that "we should take judicial notice that the words, ``hootch,' ``moonshine,' ``white mule,' etc., are generally used in connection with the unlawful manufacture of whiskey; that it was manifest the General Assembly intended to make it a felony in Section 21" (Laws 1923, p. 242) "for the unlawful manufacture of any kind of whiskey; and that an information under Section 21, which charges the defendant with unlawfully manufacturing whiskey sufficiently charges a felony; and that proof of such charge, is sufficient to sustain a conviction for felony."

In an opinion by Commissioner HENWOOD, State v. Wood,321 Mo. 540, decided at this term, a defendant was convicted under a charge of manufacturing hootch, moonshine or corn whiskey. The conviction was affirmed although the proof simply showed that the defendant manufactured whiskey.

II. A casual consideration of this case may encourage the conclusion that, as Cicero said, it is an "Ex cloaca arcem facere." However, when the effect of a contraryVariance: ruling to that urged in this dissent isNon-Prejudicial. considered, the case becomes not a "mere fuss about trifles" but a matter of vital importance in the enforcement of the law. It is that with which we are most concerned, subject of course to the canons of construction, in the interpretation of the statute. As if to impress the gravity of this duty upon the courts, the Legislature, in the first section of the statute, provides in effect that it was enacted for the protection of the economic welfare, peace, health, safety, and morals, of inhabitants, and that all of its provisions shall be liberally construed for the accomplishment of purposes, thereof (Sec. 1, Laws 1923, p. 237). Unless, therefore, we disregard, not only the spirit and the purpose of the law but ignore our numerous rulings that hootch, moonshine and corn whiskey are simply whiskey, we cannot refuse to uphold this verdict. In what possible manner can the defendant be prejudiced by the finding of the jury? That he sold whiskey was sufficiently shown to sustain his conviction. His crime, therefore, so far as the prohibition of the statutes is concerned, was as complete and its moral effect as damning as if the proof had been made that the sale consisted of corn whiskey. This court should be concerned only with the fact as to whether the error assigned is prejudicial. If not then its commission will not render a conviction erroneous. [State v. Allen, 246 S.W. (Mo.) 946.] Errors at most are only presumptively prejudicial, but are not so where the record, as at bar, shows that they deprived the defendant of no right under the law to which he was entitled in making his defense. If it be contended that there was a variance between the charge and the proof, it will be sufficient to say that it consisted wholly in the designation of the article charged to have been sold, and not its nature or substance. Under such a state of facts it cannot be held that the defendant suffered any prejudice from the character of the proof adduced to secure his conviction. [State v. Cutter, 318 Mo. 691.] When courts were more scholastic than rational and defendants were not permitted to have counsel, the practice grew up of treating every variance between the charge and the proof as prejudicial. In the light of a more intelligent administration of the criminal law and with a more considerate regard for the interests of the public, the courts, without disregarding the rights of defendants, have, when error is assigned, looked to the record to determine if any right to which a defendant is entitled has been denied to him and if not then the error assigned is not deemed prejudicial. We have shown that the variance between the charge and the proof could not have prejudiced any right to which the defendant was entitled in making out his defense. We regard, therefore, the error assigned in the majority opinion as not of a nature to authorize a reversal of this case.

I find upon an examination of the Wright case, 312 Mo. 626, 280 S.W. l.c. 706, by Commissioner RAILEY, as published in the S.W. Reporter, that my associates only concurred in the result reached in that case. While they held there was a variance between the charge and the proof as to the character of the liquor sold, that, under the provisions of Section 3907, Revised Statutes 1919, such a variance did not constitute reversible error. The language of their concurrence was as follows:

"The proof in this case showed the manufacture of whisky which may or may not have been ``white corn whisky.' At most it was only a variance in the proof from the averments of the information. Under that statute, it cannot be deemed a ground for acquittal, because the trial court did not find it was material and the record does not show that the question was presented to or passed upon by the trial court. [State v. Harl, 38 S.W. 919, 137 Mo. l.c. 256.]"

If, under the record and the facts in the Wright case, supra, identical in all of their material features to those in the instant case, the variance was not material, by what process of reasoning can it now be held to be prejudicial in the instant case?

It is embalmed in the Proverbs that "in a multitude of counsellors there is safety." If precedent, the pole star of construction under our system of jurisprudence, is to be respected, it may be said with equal aptness that out of a multitude of like reasons is the wisdom of a conclusion rightly established.

I am of the opinion, therefore, that the judgment should be affirmed.