State v. Kroeger

I concur in reversing and remanding as decided in the divisional opinion. The dissenting opinion in division insists that we reject a construction of the Act of 1923, to which we have consistently adhered since its enactment.

The defendant was convicted of a felony, and the proof showed that he had committed only a misdemeanor. He sold a pint of whisky and for that transaction was assigned a residence of two years in the penitentiary. He did not manufacture whisky and there is nothing to show that the pint sold was unlawfully manufactured, a fact which the State must prove before be could rightly be convicted of a felony. For aught that appears, it was manufactured lawfully and was lawfully in defendant's possession, in which case his offense in selling it for beverage purposes was a misdemeanor only, as we have heretofore always held.

Defendant was not in the whisky business. He was operating a garage. This was his first and only offense, so far as the record shows. There was some indefinite evidence of another sale at that same garage, at some indefinite time, but the evidence does not connect defendant with it.

With the evidence in its possession the State had grounds to issue a search warrant to find out whether his garage was used as a hiding place for illicit whisky, but no effort was made to ascertain the facts about it. The prosecutor in examining his witnesses carefully avoided asking any question which might reveal the origin of the stuff sold.

Before we inflict punishment such as is meted out to one convicted of manslaughter or burglary, the State should prove the offense was one for which the lawmakers have provided that severe penalty. A felony charge carries certain serious incidents: the right of an officer to arrest on information without a warrant, and to shoot in preventing an escape.

It seems necessary to go into the history of the prohibition enactments, and the decisions construing them.

By the Act of 1919, embodied in Article VII, Chapter 52, Revised Statutes 1919, the Legislature enacted a comprehensive prohibition law in accordance with the Volstead Act.

In 1921, Section 6588, which appears in said Article VII, was amended, making it unlawful for "any person, firm, association or corporation, his, its or their agents or employees, to manufacture, sell, possess, give away or transport intoxicating liquors."

The General Assembly of 1923 undertook a modification of the law, repealing a number of sections in Article VII, but leaving Section 6588 still in force, and dealing specifically with many varieties of manufacture, sale, etc., of intoxicating liquor. Defendant was charged with the sale of corn whisky under Section 21 of that act, which provides:

"If anyone shall manufacture, make, brew, etc., sell, give away or transport any hootch, moonshine, corn whisky (he) shall be guilty of a felony."

Then follows provision for punishment, the highest being five years in the penitentiary.

While Section 6588 covers every kind of intoxicating liquor, it is perfectly evident that said Section 21 was intended to lift out of that general designation certain kinds of liquor, and provide for severer punishments.

Why should the Legislature use the words "hootch, moonshine corn" in Section 21? Why didn't they simply use the word "whisky?" The lawmakers were persons of more than average intelligence and experience. They chose their language with some degree of care. Bills go through a committee which looks after the phrasing so as to make such bills convey their exact meaning. Why did they use that language if they intended it to mean nothing?

Neither the State's brief, nor the dissenting divisional opinion, has ventured an explanation.

A reasonable explanation of a law, so much more severe in the penalities inflicted than appears in the Volstead Act, is that the legislative intention was to strike at the root of the liquor business in its most pernicious form, break up moonshine stills and stop the transportation and marketing of their product.

The act makes other distinctions. The next preceding section, 20, declares it a felony with higher minimum punishment to manufacture, sell or give away, (etc.) hootch, moonshine, corn whisky, or other intoxicating liquor "the drinking of any of which will cause the death of another," thus segregating such fatal beverages from those of like name, mentioned in Section 21. The distinction is only in the effect of the stuff sold, and the result would depend upon many factors, the constitution of the drinker, the quantity drunk, the previous habit, etc. Any moonshine in sufficient quantities might produce death. There are other distinctions in the use and possession of implements of manufacture, reclaiming alcohol, etc. I mention these to show that the Legislature was making fine distinctions in the endeavor to cover every form of liquor violation.

The purpose of Section 21 is explained with completeness and particularity in State v. Griffith, 311 Mo. 630, l.c. 641, opinion by Judge WALKER, in these words (some significant expressions I underscore):

"(The legal, as well as the practical, effect of Section 21 is to segregate the liquors therein named from the general class and to prescribe a heavier penalty for their manufacture, sale, etc.)"

And then (l.c. 641-2):

"(So far as concerns the legal propriety of the words `hootch,' `moonshine,' `corn whisky,' in the information, used in conformity with the language of the statute, it may be said, although not given formal recognition by the lexicographers or embalmed in precedents, these words have, from continued use, become so embedded in our vernacular that their meaning is familiar to every one of general intelligence as designatingintoxicating liquor, illicitly distilled for beverage purposes. . . .).

"Under such circumstances of what everybody else knows we may take judicial notice. It was proper, therefore, in charging an offense under the statute, not only that the generic term`intoxicating liquor' be employed but that the specific terms`hootch,' `moonshine,' `corn whisky,' be used as definitive ofthe particular kind of such liquor sold. The use of the words `commonly called,' following the words `intoxicating liquor' in the information, detract in no wise from the directness of the charge, but serves to bring them clearly within the purview of the provisions of Section 21. These words, performing as they dothe important function of identifying and classifying theoffense, are as important as any other words required by theConstitution and the statutes to be used in denouncing the crime.Therefore it is a mere quibbling with words to decry their use."

If the words "hootch, moonshine, corn whisky" are used to "segregate" the liquors so named, and prescribe heavier penalties for their manufacture, sale, etc., and if everybody knows they designate liquor "illegally distilled," then they could not apply to the sale for beverage purposes of whisky lawfully distilled.

In charging a sale in violation of Section 21, those specific terms must be used. Has it come to this: that while an information must state facts which constitute a crime, it is no longer necessary to prove those facts? If a felony case may be made out by simply proving a defendant sold whisky, why was it necessary to allege that he sold a specific kind of whisky?

The ordinary definition of "moonshine" applied to liquor is whisky manufactured illegally. The word "hootch" carries with it a significance of law-defying origin. In order that no mistake might be made, the Legislature added to Section 21 a proviso that "it shall not apply to corn whisky lawfully manufactured, transported or sold." Thus the proviso limits the application of the section to whisky unlawfully manufactured. It could not under any circumstances apply to any unlawful dealing with liquor lawfully manufactured. If this was not the plain intention of the lawmakers, then language cannot express an intention. Under the proviso to Section 6588, and under Section 6592, as amended in 1921, one may possess intoxicating liquor in his home, if it has been lawfully acquired and is being lawfully used. A physician may possess and prescribe it by the laws of the United States Government. That, of course, could only be liquor lawfully manufactured, yet any of such whisky lawfully manufactured might be unlawfully sold. If a druggist who rightfully possesses such whisky should sell a pint for beverage purposes would he be guilty of selling moonshine, hootch or corn whisky, as described in Section 21? Would anyone who might sell such liquor? Never up to this time has such a sale been characterized as other than a misdemeanor meriting a fine or jail sentence and not a term in the penitentiary. The Attorney-General in the oral argument frankly admitted that such sale would be a misdemeanor, but contended that the fact must be proven as a defense. That is to say, one charged with a crime must assume the burden of proving his innocence, and the presumption of guilt instead of innocence attends him. If one is charged with feloniously stealing money the State does not make out a case by proving merely that the defendant stole money. It must go further and prove that the money amounted to thirty dollars or more. Otherwise the offense is a misdemeanor, not a felony.

In order to remove any uncertainty about it, Section 22 of the Act of 1923, following Section 21, provides a punishment as for misdemeanor where any person is convicted of violation of any of the provisions of the act, or any of the provisions of Article VII, Chapter 52 (including Section 6588), "and where no different punishment is fixed." The section goes on to fix punishment for the first offense, a second offense and a third and subsequent offenses, with increasing severity for each successive offense, but it never gets to a penitentiary term. This would cover the case of a dealer in liquor, other than that mentioned in Section 21, who is convicted several times.

In State v. Pinto, 312 Mo. 99, decided at the same term as was State v. Griffith, supra, it was held that the words "moonshine," "corn whisky" and "hootch" as used in Section 21, were not synonymous (l.c. 109), because such a construction led to misunderstanding and confusion, expressly overruling State v. Brown, 304 Mo. 78, on that point. All the Judges of Division Two concurred, yet the dissenting opinion in Division cites State v. Brown to show the words are synonymous. In that case we said (p. 108):

"The Legislature intended to distinguish between corn whisky, whose manufacture and sale was denounced as a felony, and other kinds of liquors, the manufacture or sale of which comes within the statute defining misdemeanors, and to grade the series of offenses which might be committed in connection with intoxicating liquor." It was further said in that opinion (l.c. 109):

"The misdemeanor statute covers all kinds of liquors except those specifically described and provided for in the Act of 1923."

In these two cases, the Griffith case and the Pinto case, we attempted to set forth a complete analysis of the Act of 1923, and they have been referred to and followed from that time (1925) to this.

Up to the present time the rulings have been uniform that in order to convict one of selling hootch, moonshine or corn whisky the State must prove it. The reports are full of cases in which the circuit courts and prosecutors so interpreted the act; introduced experts who qualified before they testified to the quality of the liquor. They were either experts by chemical education, or by experience, as many sheriffs are. Some times the liquor is traced to the illicit still. But construing the act liberally we have consistently held evidence that liquor was of the kind usually manufactured illegally, made out a prima-facie case. Never before have we been asked to condemn as a felony a sale without the proof mentioned.

It is necessary to examine some of the cases deciding this point.

In State v. Stratton, 316 Mo. 240, the defendant was charged with giving away moonshine whisky. The proof showed that a person drove his horse and buggy to a field where the defendant and others were baling hay; the defendant took a bottle from this person's buggy, drank from it, put it between two bales of hay, and afterwards passed it around among his co-workers, giving them each a drink out of his bottle. There was no proof that the whisky which defendant passed among his associates was moonshine or any other whisky illegally manufactured. The court said (l.c. 242): "The indictment charged that the defendant gave away moonshine whisky. It was necessary for the State to prove that the liquor was moonshine whisky."

Moonshine, it was understood there, was any whisky illegally manufactured. The defendant was charged with a felony and convicted of a felony, when the proof at most showed only a misdemeanor. The sentence of two years in the penitentiary was reversed and the cause remanded, that the State might prove its charge or convict the defendant of a misdemeanor only. All the Judges of Division Two concurred in that result and in the reasons for it, following the distinction so carefully elucidated by Judge WALKER in the Griffith case, supra.

We might have reversed the judgment in that case on the ground that to "give away," condemned in the statute, means such giving away as conceals sale, and does not mean that punishment as for a felony should be inflicted for what defendant deemed a courtesy in dividing with his companions that infliction rather than bear it all himself. But that question did not enter into the case. It was decided squarely on the failure to prove the whisky was of the kind which the Legislature has declared it a felony to deal with in any manner. The punishment was so out of proportion to the offense proved that the Legislature could not have meant to have it inflicted in such a case.

In State v. Gatlin, 267 S.W. 797, the charge was the transportation of moonshine, corn whisky. Liquor was found in the defendant's car, but there was no proof that it was hootch, moonshine or corn whisky. The judgment was reversed and the cause remanded. Here again we followed the same distinction, all concurring except Judge WALKER, absent.

In State v. Bilyeu, 295 S.W. 104, the charge was the manufacture of "hootch, moonshine or corn whisky." It was held that the information was defective because hootch or moonshine might have been different from corn whisky, and being in the alternative it did not charge anything with definiteness. The judgment was reversed and the cause remanded. If whisky was whisky, with no distinction as to kinds, that judgment could not have been reversed. The ruling follows that in the Pinto case, that "moonshine" and "corn whisky" are not synonymous. All the judges of Division Two concurred.

State v. Wright, 291 S.W. 1078, is cited as in conflict with the ruling here. It was a case of sale. The charge was selling white corn whisky, and that was the proof. The opinion says (l.c. 1079): "The liquor was unlawfully manufactured whisky." Why should the court say that when the case was one of sale? Obviously, because it was necessary in order to sustain the charge. It was only the sale of whisky, unlawfully manufactured, that would make it a felony.

Some cases are cited in support of the conviction, but those are cases of manufacturing whisky, not sales. Under Section 21, manufacturing whisky unlawfully is always a felony. One of these is State v. Wright, 312 Mo. 626, written by RAILEY, C. By some mistake the concurring opinion of a majority of the court, who were not satisfied with some of Judge RAILEY'S sweeping generalizations, was omitted from the official reports. It is reported in Southwestern, Volume 280, page 703. The charge wasmanufacturing "corn whisky," and proof showed manufacture of some kind of moonshine whisky. A felony was charged and a felony proven. The concurring opinion pointed out that, while the proof did not correspond with the charge, under Section 3907 at most it was a variance, which could not be taken advantage of unless brought to the attention of the trial court and there deemed material. The leading opinion noted that defendant claimed he had committed only a misdemeanor while he was charged with a felony, and that his offense came properly within the terms of Section 6588, and says to that (l.c. 705): "It was not claimed that defendant had any authority for manufacturing corn whisky or any other kind of whisky." And, "Section 21, of the Laws of 1923 . . . was intended to cover every kind of unlawful manufacture of whisky." Nothing said about a sale. There could be no manufacture except feloniously. One felony was charged and a kindred felony was proved.

Another manufacturing case was State v. Sandoe, 316 Mo. 55, opinion written by RAILEY, C. The charge was manufacturing hootch, moonshine, corn whisky. The opinion says (l.c. 62): "Sheriff Smith testified that he tasted the whisky in controversy and that it was corn whisky."

In State v. Vesper, 289 S.W. 862, the defendant was charged with manufacturing hootch, moonshine, corn whisky. The evidence showed he was reclaiming alcohol. The product could properly come under the designation of hootch or moonshine, though it could not properly be called corn whisky, again indicating that those terms are not synonymous. Judge BLAIR in writing the opinion said: "All intoxicating liquor illegally distilled for beverage purposes is hootch, moonshine or corn whisky." The word "distilled" confined the generalization to grain liquor, not lawfully manufactured.

In State v. Brock, 289 S.W. 48, opinion rendered by Judge BLAIR, this court again quoted the analysis of Judge WALKER in the Griffith case, as follows:

"It was proper, therefore, in charging an offense under the statute, not only that the generic term `intoxicating liquor' be employed, but that the specific terms `hootch,' `moonshine,'`corn whisky,' be used as definitive of the particular kind ofliquor sold."

In State v. Black, 289 S.W. 804, was where the charge was the sale of hootch, moonshine, corn whisky, and the proof was that the liquor sold was corn whisky.

In State v. Combs, 273 S.W. 1037, the defendant was charged with the felonious sale of moonshine, in violation of the Act of 1923. The opinion of Judge WALKER notes that an analysis was had by a witness who testified that the liquor sold contained 52 per cent of alcohol by volume, and that it could be designated as moonshine. The point made was the statute described no offense because the disjunctive "or" was omitted after "moonshine" and before "whisky." (We later supplied that word by construction.) In speaking of the next paragraph of this statute (l.c. 1039), the opinion says:

"One of these is corn whisky, which cannot be eliminated from the classification without doing violence to the purpose of the statute." And then continues further:

". . . we are not unmindful of the cardinal rules of construction applicable alike to all general statutes that it will not be presumed that the Legislature intended to enact an absurd law, incapable of sensible construction and practical operation."

One of the latest cases, State v. Cook, 3 S.W.2d 365, is where the defendant was charged with selling hootch, moonshine, corn whisky, and proof showed the sale of three pints of moonshine. The opinion, by Judge WALKER, in passing on the propriety of the demurrer to the evidence points out that the "liquor shown to have been sold was designated as moonshine or corn whisky," and it was held that those terms are known to every person of average intelligence, and need not be defined in an instruction.

That definite meaning could not be so well known unless those terms meant some specific kind of whisky. (See illuminating article on "Hootch, Moonshine and Corn Whisk" by Ben Ely, Jr., in Missouri Bar Bulletin for November 14, 1928, especially pages 15, 16, et seq.)

In all those cases a distinction was made between themanufacturing of liquor and the selling of liquor. Manufacturing unlawfully is always a felony and the sale ofsuch liquor is always a felony, as we have frequently construed the Act of 1923. But a person might sell whisky for beverage purposes which was not manufactured illegally. In that case, Section 6588 would apply, as we have held numerous times. We are not responsible for that distinction between different classes of liquor. To introduce a different classification now would be to lead to confusion and would not aid in law enforcement. It would lead to more embarrassing distinctions.

If the interpretation contended for should obtain then we would wipe out by construction the words "hootch, moonshine, corn" standing in Section 21, and in other sections where these terms are used, leaving "whisky" standing alone unqualified, and repeal by construction Section 6588, so far as it affects whisky. We have never yet taken that liberty with a legislative enactment. With the construction of the statute to which we have so far adhered, the Legislature apparently has been satisfied, for they have not yet amended the Act of 1923 in that respect. If they desire to have the sale of any kind of whisky, or any kind of intoxicating liquor, adjudged a felony, they should amend the law to make it say so.

The definition of whisky contended for is "alcoholic liquor obtained by distillation of mash of fermented grain" of any kind. It is pretty well known that large quantities of whisky are manufactured illegally from potatoes, sugar beets and fruits. Under the definition quoted that could not come under the provisions of Section 21, whereas under the construction we have adopted it would be moonshine and its illegal manufacture would be a felony.

If we should adopt the construction contended for, hundreds of cases now disposed of as misdemeanors would come to this court, further overcrowding our docket.

The Legislature probably did the best it could in a difficult situation, with divergent popular views regarding the "best law" to be enacted. The "best law," of course, is the one which will most effectually accomplish the purpose intended. It is not necessarily the one which on paper looks most terrifying. Too severe penalties often defeat the law's purpose. The law should be interpreted with the view to give effect to the intention of serious-minded men who enacted it. We cannot charge them with an intention to enact a joke in using the words "hootch, moonshine, corn," and construe them to have no meaning. We certainly are not amiss in holding that a misdemeanor has been committed where the criminal act is not plainly called a felony.

For these reasons I concur in reversing the judgment and remanding the cause. Ragland, Gantt and Frank, JJ., concur in these views.