State v. Buckner
| Decision Date | 05 March 1935 |
| Docket Number | 33964 |
| Parties | STATE v. BUCKNER |
| Court | Missouri Supreme Court |
J Grant Frye, of Cape Girardeau, for appellant.
Roy McKittrick, Atty. Gen., and William W. Barnes, Asst. Atty Gen., for the State.
BOHLING, Commissioner.
This is an appeal from a judgment and sentence of a fine for feloniously transporting hootch, moonshine, corn whiskey.
On the night of April 18, 1933, after obtaining a search warrant for appellant's automobile, a deputy sheriff of Cape Girardeau county and two federal prohibition officers stopped appellant while he was driving his automobile on an unfrequented highway in said county, read the search warrant to him, searched his automobile, found six five-gallon cans of liquor in the car, arrested appellant, and took him to the police station in Cape Girardeau. Witnesses for the state testified that the liquor was hootch, moonshine, moonshine whiskey, corn whiskey. No issue is made as to the sufficiency of the evidence.
Appellant (the only defense witness) admitted the search, seizure, and arrest, but claimed he was transporting the cans for another party and did not know at the time what was in them, because (on cross-examination) he had not looked into them, although he 'had an idea what was in them.'
Appellant's motion for a new trial complains of error on the part of the trial court limiting the cross-examination of the witness Cornelius touching said witness' knowledge of hootch, moonshine, and corn whiskey. At the time the court interrupted the cross-examination of this witness, appellant's counsel was endeavoring to bring out from the witness the legal distinctions between or definitions of the terms hootch, moonshine, and corn whiskey. Such matters, being issues of domestic law, were within the exclusive province of the court. State v. Hayes (Mo. Sup.) 247 S.W. 165, 168 (6); 16 C. J., p. 754, § 1546; 1 Wharton, Crim. Ev. (10th Ed.) p. 954, § 455; 1 Wharton, Ev. (3d Ed.) p. 480, § 507. The court thereafter, without interruption, permitted appellant's counsel to fully cross-examine this witness as to the contents of the cans involved and his understanding of the terms hootch, moonshine, and corn whiskey; and counsel elicited from the witness that his understanding of moonshine was 'illegal whiskey'; that legal whiskey had government stamps on each container; that the whiskey in question was 'corn whiskey'; that it was made out of corn and sugar; that witness would call illegal corn whiskey 'hootch' and 'moonshine'; and that witness based his information as to whether or not the whiskey in suit was legally or illegally distilled on the containers it was in when it was seized. Thus, appellant's counsel placed before the jury the facts upon which the witness based his statements that the liquor in question was 'corn whiskey,' 'hootch,' 'moonshine'; and, even had counsel properly confined his prior cross-examination, prejudicial error may not now be successfully asserted. State v. Warren, 317 Mo. 843, 854, 297 S.W. 397, 401 (3); State v. Curtner, 262 Mo. 214, 219, 170 S.W. 1141, 1143 (3). Illegal corn whiskey is hootch and moonshine under section 4500, R. S. 1929, Mo. St. Ann. § 4500, p. 4662. State v. Pinto, 312 Mo. 99, 109, 279 S.W. 144, 147 (12, 13); State v. Barr, 326 Mo. 1095, 1102, 34 S.W.2d 477, 480 (14).
Appellant testified he did not know what was in the cans. The court instructed the jury that it was not necessary for the state to prove that appellant knew the contents of the cans by witnesses who may have known their contents; that appellant's knowledge might be shown by proof of facts and circumstances from which such knowledge might be reasonably and satisfactorily inferred; that is, by circumstantial evidence; that the state sought to show appellant's knowledge by circumstantial evidence; that they should not convict appellant unless he be proven guilty from the evidence beyond a reasonable doubt by facts and circumstances consistent with each other and his guilt and absolutely inconsistent with any reasonable theory of his innocence. Appellant attacked the instruction in his motion for new trial, but made no mention of it in his assignments or brief. We think the instruction proper. See State v. Bauerle, 145 Mo. 1, 17, 46 S.W. 609, 612 (2); State v. Barker, 322 Mo. 1173, 18 S.W.2d 19, 21 (2); State v. Lawrence (Mo. Sup.) 71 S.W.2d 740, 743 (3). The statute (section 4500, R. S. 1929, Mo. St. Ann. § 4500, p. 4662) provides: 'If any person shall * * * transport any 'hootch,' 'moonshine,' 'corn whiskey' (he) shall be guilty,' etc. The act of transporting constitutes the offense, and the state is not required to prove knowledge on the part of the defendant of the nature of the liquor transported to make a prima facie case. The main instruction required the jury to find that appellant 'did wilfully, that is, intentionally, not accidentally, transport' hootch, etc. Another instruction read: 'If the jury believe that defendant did not know the contents of the cans in question, then you will find him not guilty.' Under these instructions, the defendant was given the full benefit of the defense of his lack of Knowledge of the contents of the cans.
The court gave instruction 2, reading: 'The court instructs the jury that before you can convict the defendant you must believe beyond a reasonable doubt that the cans in question contained hootch, moonshine whiskey, and unless you do so find you will find defendant not guilty'; and refused requested instruction C, reading: 'The court instructs the jury: Before you can convict defendant, you must believe beyond a reasonable doubt that the cans in question contained either hootch, moonshine or corn whiskey, and no other kind of liquor or whiskey, and unless you do so find, you will find defendant not guilty.' The gist of appellant's assignment in his motion asserts refusal of instruction C was error because said instruction was, to some extent, the converse of the main instruction and required a finding beyond a reasonable doubt that the cans contained hootch, moonshine, or corn whiskey, and not something else. Upon formulating a correct declaration of law and requesting the court to give it, a defendant is entitled to the converse of the state's principal instructions [State v. Ledbetter, 332 Mo. 225, 228 (3), 58 S.W.2d 453, 454 (3)]; otherwise not [State v. Tucker, 333 Mo. 171, 178 (5), 62 S.W.2d 453, 455 (5)]. There is no evidence in this case that the liquor was other than hootch, moonshine, or corn whiskey. Given instruction 2 fully submitted the converse of the state's main instruction under the applicable issues presented by the evidence in so far as covered by requested instruction C, and the assigned error is without merit. See State v. Ancell, 333 Mo. 26, 40, 62 S.W.2d 443, 449 (18); State v. Peer (Mo. Sup.) 39 S.W.2d 528, 533 (11); State v. Myers, 330 Mo. 84, 95, 49 S.W.2d 36, 40 (5); State v. Emma, 324 Mo. 1216, 1226, 26 S.W.2d 781, 785 (6).
Appellant's motion for new trial states the court erred 'in permitting the state to prove, over defendant's objection, the finding of some fifty gallons of liquor and parts of a still at a place near where defendant was arrested.'
We think, as stated by the Attorney General, the assignment is too general to preserve anything for review. In State v Standifer, 316 Mo. 49, 54, 289 S.W. 856, 858 (2), this court, through Blair, J. (the writer of State v. Parmenter [Mo. Sup.] 242 S.W. 897, 898 [1], and State v. Lamb [Mo. Sup.] 278 S.W. 1009, 1012 [5], holding, under section 4079, R. S. 1919, prior to its amendment [Laws 1925, p. 194, now section 3735, R. S. 1929, Mo. St. Ann. § 3735, p. 3275], general assignments of error with reference to the admission or exclusion of evidence in motions for new trial sufficient to preserve for review sufficiently specific objections and exceptions properly lodged against the trial court's rulings thereon during the trial), held, under now section...
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