State v. Ernst

• Decision Date: 05 March 1929
• Docket Number: 1498
• Parties: STATE v. ERNST, ET AL. [*]
• Court: Wyoming Supreme Court

275 P. 110

40 Wyo. 64

STATE v. ERNST, ET AL. ^[*]

No. 1498

Supreme Court of Wyoming

March 5, 1929

Rehearing denied, see 277 P. 8.

Rehearing Denied 40 Wyo. 64 at 70.

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

W. F Ernst, alias George Carter, and another were convicted of manufacturing intoxicating liquor and they appeal. Rehearing denied. See 277 P. 8.

Affirmed.

Edward T. Lazear and Arthur R. Morrison, for appellant.

The term liquor is defined by Chapter 149, Section 2, Laws 1921 and Section 2 of the same chapter prohibits the possession of liquor, or property designed for its manufacture; the trial court erred in this case in giving Instruction No. 4 to the effect that it was unnecessary to prove completion of the process of manufacture, to constitute an offense; this instruction is clearly erroneous under the authorities, and in fact under the section of the statute defining liquor; it seems too clear to admit of controversy that any one of the classes of liquor referred to in the statute must be a completed product. Berry v. U.S. 275 F. 680; Keen v. U.S. 11 F.2d 260; Blue v. State, (Okla.) 205 P. 774. The latter case involved a question as to whether the product found in the defendants' possession was beer. The proof showed that it was a liquid, which the officers believed to be beer. See also Norwood v. State, (Fla.) 86 So. 506; State v. St. Clair, (Mo.) 247 S.W. 203; Parham v. State, 89 So. 775. The additional specification of error, goes to the refusal of the court to give an instruction requested by defendants to the effect that the word "manufacture" under our statute, means the completed product of liquor as defined by the statute, and the same authorities are cited by reference in support of that specification of error. There was no proof that the alleged product found in the possession of the defendants, was liquor, as defined by statute, and for that reason the judgment should be reversed.

W. O. Wilson, Attorney General, and John Dillon, Spe cial Assistant Attorney General, for respondent.

The word "manufacture" has a common, ordinary meaning. Sharp v. Hassey, 114 N.W. 118; Dempsey v. Start, 137 N.W. 235. To constitute the offense of manufacturing liquor, it is not necessary that the product of the manufacturer should be complete. State v. Ravan, 74 S.E. 500. The evidence clearly showed that defendants were engaged in the manufacture of moonshine whiskey, and that the equipment in their possession was such as is used for the manufacture of liquor.

Edward T. Lazear and A. R. Morrison, in reply.

A general definition of the word "manufacture" cannot apply in the present case, for the reason that the statute invoked, prohibits the manufacture of liquor as defined in another section. The process of manufacture, must be complete, and the product must be as defined, before a violation of the statute can be proven. In this case it was not proven that the liquid substance, found in possession of defendants, was intoxicating liquor, hence no offense was proven. Meehan v. U.S. 24 F. 690. The cases cited in respondents' brief in view of the facts, do not apply.

Before BLUME, C. J., KIMBALL, J. and BURGESS, District Judge. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

BURGESS, District Judge.

The defendants were convicted in the District Court of Laramie County of manufacturing intoxicating liquor and have brought the case here for review.

The facts are undisputed and in substance are that about midnight, February 15, 1927, the sheriff of Laramie County in company with others came upon a building recently constructed in the bottom of a canon, near a spring, remote from human habitation and about 40 miles from Cheyenne. Close by was a truck partly filled with corn sugar. Entering the building the officers found the two defendants, forty-four barrels of corn sugar mash, a boiler filled with the same kind of mash, three gas burners under it lighted, and a coil surrounded with water attached to the boiler. Steam and a liquid in drops were issuing from the end of the coil. The evidence, however, does not disclose what this liquid was.

The sheriff after testifying that he was acquainted with the means and devices used to manufacture intoxicating liquor was interrogated as follows:

"Q. Tell this jury, if you know, Mr. Carroll, what the exhibits (the boiler, coil and gas burners) as you found them at the time you mentioned, were being used for?

A. The manufacture of liquor.

Q. The liquor commonly called moonshine.

A. Yes, sir."

The evidence does not disclose that a finished product in the form of intoxicating liquor had resulted from the operation of the still. It shows only that the defendants were engaged in the making of liquor, the final process set in motion by them not yet being complete when interrupted by the officers.

On the theory that there was no offense until there was a completed product defendants counsel requested the following instruction which was refused:

"The statute of this State provides that any person who manufacturers liquor as by the statute defined, shall upon conviction be punished. The word "manufactures" as in our statute used anticipates completed product of liquor as defined by the statute, and as liquor is defined by these instructions."

The court then gave the following:

"You are instructed that to constitute the offense of manufacturing intoxicating liquor it is not necessary that the product of the manufacture should be complete. Manufacture is the process of making by art or reducing materials into form fit for use, by the hand or by machine; and one employed in this process is manufacturing."

Chapter 128 of the Wyoming 1925 Session Laws reads "any person who manufactures liquors in violation of this act" shall be punished, etc., and the word "liquor" is by our statute to be construed to include, among other things, whiskey containing one-half of one per cent or more of alcohol by volume and fit for beverage purposes. Sec. 2, p. 149, Wyo. Session Laws 1921.

The word manufacture is not a technical term. The lower court in defining it in the instruction given adopted one of the common definitions given by lexicographers, namely, that "manufacture is the process of making by art or reducing materials into form fit for use, by the hand or by machine." The acts of the defendants came clearly within this definition. They were tending a whiskey still in operation. They were engaged in the process or operation of making moonshine whiskey. All things necessary to the making of the whiskey had been done by them, and nothing remained but to wait until the final process, already set in motion by them, had produced that which the...