Endish v. State

• Citation: 188 Wis. 259,205 N.W. 822
• Parties: ENDISH ET AL. v. STATE.
• Decision Date: 17 November 1925
• Court: United States State Supreme Court of Wisconsin

188 Wis. 259

205 N.W. 822

ENDISH ET AL.

v.STATE.

Supreme Court of Wisconsin.

Nov. 17, 1925.

Error to Iowa County Court; Aldro Jenks, Judge.

Joseph A. Endish and Alois Bauer were convicted of unlawful manufacture and possession of intoxicating liquors, and they bring error. Judgment reversed as to the defendant Bauer, and reversed as to all except one count as to defendant Endish.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted in the county court of Iowa county, before the court and a jury, on four counts, to wit: (1) Manufacture of intoxicating liquors without a permit, contrary to subsection (3), § 165.01, Stats.; (2) unlawfully having in their possession and under their control without a permit privately manufactured distilled liquors, contrary to and in violation of subsection (32) (d), § 165.01, Stats.; (3) unlawfully having in their possession and under their control without a permit certain compounds and ingredients in process of fermentation from which liquors are customarily made, contrary to and in violation of subsection (32) (d), § 165.01, Stats.; and (4) unlawfully having in their possession and under their control without a permit, and other than in their private dwelling used exclusively as such, privately manufactured liquors containing alcohol in excess of one-half of 1 per centum, in violation of subsection (28), § 165.01, Stats.

The defendants were sentenced on each count separately, and from such sentence they sued out a writ of error to this court.Morris Podell, of Milwaukee, for plaintiffs in error.

H. L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and N. S. Boardman, Dist. Atty., of Mineral Point, for the State.

CROWNHART, J. (after stating the facts as above).

The facts are not in controversy. The defendant Endish was the owner of the United States Hotel at Mineral Point, and the real estate upon which it was situated, together with a stone building thereon, called the laundry or washhouse, situated about 40 feet from the hotel. Endish was in possession of the property and ran the hotel. On the 4th of September, 1924, enforcement officers entered the premises with a search warrant, and discovered in the hotel wine and beer containing alcohol in excess of one-half of 1 per cent. They also entered the laundry or washhouse, and found there similar intoxicating liquors. They also found in the laundry some warm mash, a copper boiler, a dipper, some malt, a small stove, which was warm, and a couple of pieces of hose. No distilled liquors were found on the premises, and no still or other contrivance used or capable of being used for the distillation of alcoholic liquors was found. There was no evidence of the character of the mash, and nothing to indicate that it was mash from which distilled liquor is customarily made. On the morning of that day smoke was seen coming from the chimney of the laundry, and the defendant Bauer was seen going into the laundry, and again he was seen coming out of the laundry in the afternoon, shortly prior to the search. There is no other proof of any kind convicting Bauer of the possession of intoxicating liquors or the manufacture thereof, or the possession of any contrivance for the manufacture of intoxicating liquors. There is no other proof that Endish manufactured intoxicating liquors or had in his possession any contrivance for the manufacture of intoxicating liquors. The question before us, then, is as to the sufficiency of the proof to sustain the verdict of the jury.

[1] Were the defendants guilty of the manufacture of intoxicating liquors without a permit, contrary to subsection (3), § 165.01, Stats.? It is admitted that neither of the defendants had a permit to manufacture. Endish was in possession of a hotel and laundry and of the liquors found therein. There was sufficient competent evidence to warrant the jury in finding that the beer found on the premises was manufactured in the laundry. Endish being in possession and control of the premises upon which such liquor was being manufactured, the jury were privileged to find him guilty thereof under the first count.

As to the defendant Bauer, there is no evidence whatever that he manufactured any liquor. The record is entirely barren as to his relation with Endish, or as to his business in the washhouse, and the conviction as to him on this count must be reversed.

[2] The second count charging possession of contrivances used or capable of being used for the manufacture of alcoholic liquors contrary to and in violation of subsection (32) (d), § 165.01, Stats., significantly changes the language of the statute, “used or capable of being used for the distillation of alcoholic liquors,” to “used or capable of being used for the manufacture of alcoholic liquors.” As has been stated, there was no still or other contrivance used or capable of being used for the distillation of alcoholic liquors found on the premises, and the conviction of each defendant on this count must be reversed.

[3][4] As to the third count, charging possession of compounds and ingredients in process of fermentation from which liquor is customarily made, contrary to and in violation of subsection (32) (d), § 165.01, Stats., the information again significantly fails to use the language of the statute or the substance thereof. The statute says: “The possession of any mash from which distilled liquor is customarily made * * * is hereby prohibited.” It says nothing about “compounds and ingredients in process of fermentation.” There is no proof that the mash found was mash from which distilled liquor was customarily made. The mash was evidently used for the making of beer, and, in the absence...