Everhart v. State
| Decision Date | 07 June 1952 |
| Citation | 250 S.W.2d 368,30 Beeler 272,194 Tenn. 272 |
| Parties | , 194 Tenn. 272 EVERHART et al. v. STATE. |
| Court | Tennessee Supreme Court |
Phillips & Hale and J. Edward Hyder, Rogersville, for defendants.
Nat Tipton, Asst. Atty. Gen., for the State.
This is a conviction for the unlawful possession of more than three gallons of unstamped whiskey, with punishment fixed at not more than three years in the state prison. Defendants are husband and wife and live southwest of Rogersville on Highway 70 and own a farm about 4 1/2 miles from their residence. Officers of Hawkins County procured a search warrant to search the buildings located on this farm. They went by the home of the defendants and tried to obtain the keys to the building so that a forcible entry would not be necessary. The Sheriff testified that Mrs. Everhart tried to persuade him to delay his search until the next day. Proceeding to the farm, the officers found thirty gallons of white moonshine whiskey covered up with straw in one of the stalls of the barn. The record shows that no tenants were operating this farm for the Everharts but that they were farming it themselves and held title to it as tenants by the entirety. They denied any knowledge of the whiskey.
The principal contention made by the defendants is that the indictment charged them with the possession of thirty gallons of white moonshine liquor and the motion to quash undertook to challenge the fact that the indictment failed to aver that the liquor was unstamped; that it contained more than five per cent alcohol and also challenges the validity of Chapter 182, Public Acts of 1947, under which they were indicted.
The indictment charged possession of 'white moonshine liquor.' It is generally held by the authorities that courts will take judicial notice of the fact that the term 'moonshine' liquor means whiskey which has been illicitly, illegally and clandestinely made. State v. Wright, 312 Mo. 626, 280 S.W. 703; Chaney v. State, 21 Ala.App. 625, 111 So. 188; Watson v. State, 195 Wis. 166, 217 N.W. 653; State v. Viering, 175 Minn. 425, 221 N.W. 681; State v. Charette, 75 Mont. 78, 242 P. 343; State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777; Gulley v. State, 49 Okl.Cr. 254, 293 P. 1113.
In Brown v. State 152 Fla. 853, 13 So.2d 458, 461, it is said:
'It is a matter of common knowledge, of which this Court must take judicial cognizance, that that commodity known as moonshine whiskey is an alcoholic liquor manufactured without the protection of, and contrary to, law in respect to which no tax is either levied or may be collected.'
We think the averment that the defendants had the possession of 'white moonshine liquor' is sufficient notice to the defendants that they were charged with the unlawful possession of unstamped whiskey.
We think that whenever one is charged with possessing moonshine liquor, that fact in and of itself by implication charges him with possession of liquor which has been illicitly distilled, liquor upon which the Federal tax has not been paid and liquor to which no state tax stamps may be lawfully affixed, and we also think that the indictment contains the equivalent of a charge that the liquor was unstamped.
It is further contended that the indictment fails to aver that the liquor in question contained more than five per cent alcohol. Responding to this assignment, we are of the opinion that the requirement that the liquor shall contain more than five per cent alcohol comes by way of exception in the statute which defines the character of liquors which shall be stamped under the provisions of the Act in question and it is well settled under our cases that exception in a statute need not be negatived. Villines v. State, 96 Tenn. 141, 33 S.W. 922.
Further, the authorities are to the effect that courts will take judicial notice that whiskey contains much higher alcoholic content than five per cent. Singer v. U. S., 3 Cir., 278 F. 415; Albert v. U. S., 6 Cir., 281 F. 511.
It is also insisted that the statute is invalid in that it amends Chapter 49, Public Acts of 1939, and that the title nor substance of the latter Act is not contained in this Act. Any amendment which is accomplished by the latter Act is an amendment by implication and does not fall within...
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Daniels v. State, 36705
...is an alcoholic liquor manufactured contrary to law in respect spect to which no tax is levied or may be collected. Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368, 369; Brown v. State, 152 Fla. 853, 13 So.2d 458, 461; State v. Tuten, 131 N.C. 701, 42 S.E. 443. See Code, § 38-112, catchwor......