State v. Brock

• Decision Date: 11 January 1926
• Docket Number: 26443
• Citation: 280 S.W. 48
• Parties: STATE v. BROCK
• Court: Missouri Supreme Court

280 S.W. 48

STATE v. BROCK

No. 26443

Supreme Court of Missouri, Second Division

January 11, 1926

Munger & Munger and J. W. Farris, all of Bloomfield, for appellant.

Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty Gen., for the State.

OPINION

BLAIR J.

Defendant was convicted of the felony of selling intoxicating liquor, commonly called hootch, moonshine, or corn whisky as denounced by section 21 of the Laws of 1923, at page 242, and as charged in the third count of the information. He was sentenced in accordance with the verdict to imprisonment in the penitentiary for a term of two years, and has appealed. The information contained five counts, but the state dismissed all of them except the third count.

The facts are few. The testimony of the state tended to show that in August, 1923, one John Miller entered the barber shop in Bernie, Stoddard county, owned and operated by defendant, and asked defendant if he could get any whisky. Defendant said he might be fixed up. Miller told defendant he wanted a pint. Defendant told him to lay $ 1.50 on a board indicated by him and to come back later. No one else was present. When Miller returned he found the whisky where he had laid the money and the money was gone. He took the bottle of liquor. Miller said the liquor was what was commonly called moonshine, corn whisky, or hootch. He drank out of the bottle, and some of his companions did likewise. Ned Jones, who came to Bernie with Miller and others, testified that Miller left them and returned with the bottle of liquor. He drank some of it, and pronounced it to be whisky. He did not know whether the beverage was intoxicating. Miller testified that he supposed the liquor was intoxicating.

As the only witness in his own behalf, defendant denied selling whisky to Miller, and claimed that he had never seen Miller until the day before the trial.

The first assignment of error is that the evidence is not sufficient to support the verdict. That there is no merit in such contention is apparent from the foregoing statement of facts. Although defendant did not receive the money from Miller's hands, and in return deliver the whisky to Miller, the character of the transaction as a sale is clearly apparent. The circumstances were sufficient to justify the finding of a sale, if the jury believed Miller's testimony. The main argument made in this connection is that there was no showing that the liquor was moonshine, hootch, or corn whisky. This argument is based upon the use of the word 'suppose.' The testimony of Miller on this point was:

'Q. Now, what terms have you heard this called -- was it moonshine or corn whisky? A. It is moonshine.

'Q. You would say it is commonly called moonshine, is it? A. Yes sir; I suppose it is.

'Q. Corn whisky? A. Yes, sir.

'Q. Or hootch? A. Yes, sir.'

No motion was made to strike out that part of the testimony of witness Miller, and no objection was lodged to it, nor was said witness cross-examined in relation thereto. The evidence was sufficient to submit to the jury the question of whether or not the liquor purchased from defendant was moonshine, hootch, or corn whisky. The word 'suppose' is often used in the sense of 'believe' or 'think.' Webster's New International Dictionary, latest Merriam Series.

Upon a demurrer to the evidence, words should be taken and understood in the ordinary sense which is most favorable to the state. The jury was therefore authorized to find that Miller testified that in his opinion and judgment the liquor he purchased and drank was intoxicating and was the kind of intoxicating liquor commonly called moonshine, hootch or corn whisky.

Defendant contends that the third count of the information, upon which he was convicted of a felony, only charges a misdemeanor, and that, if the pleader attempted to charge the sale of hootch, moonshine, or corn whisky, he failed for indefiniteness. Said count charged that the defendant 'did unlawfully and feloniously sell intoxicating liquor, commonly called 'hootch,' 'moonshine' or 'corn whisky.' ' It is contended that the use of the words 'commonly called' is insufficient to characterize the intoxicating liquor alleged to have been sold as hootch, moonshine, or corn whisky.

The contention is without merit. In State v. George Griffith (No. 26,447) 279 S.W. 135, decided at the present term, and not yet [officially] reported, the information was in identical form. As that case came from the same county (Stoddard), the information was doubtless drawn by the same prosecuting attorney who drew the information in the case before us. There Walker, P. J., said:

'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 of such liquor sold. The use of the words, 'commonly called' following the words, 'intoxicating liquor,' in the...