State v. Henry

• Citation: 254 S.W.2d 307
• Decision Date: 12 January 1953
• Docket Number: No. 7134,7134
• Parties: STATE v. HENRY.
• Court: Court of Appeal of Missouri (US)

Page 307

254 S.W.2d 307

STATE v. HENRY.

No. 7134.

Springfield Court of Appeals, Missouri.

Jan. 12, 1953.

E. C. Hamlin, Springfield, for appellant.

Bill Davenport, Pros. Atty., Christian County, Ozark, for respondent.

VANDEVENTER, Presiding Judge.

Defendant was convicted of selling nonintoxicating beer to a minor and has appealed.

Appellant's first objection is that the information does not charge a crime under the Laws of Missouri and is not in the language of the statute.

Section 312.010 RSMo 1949, V.A.M.S., Laws of Mo.1933, Page 265, Sec. 13139z-2, defines nonintoxicating beer as follows:

'The phrase 'nonintoxicating beer' as used in this chapter shall be construed to refer to and to mean any beer manufactured from pure hops or pure extract of hops, and pure barley malt or other wholesome grains or cereals, and wholesome yeast, and pure water, and free from all harmful substances, preservatives and adulterants, and having an alcoholic content of more than one-half of one per cent by volume and not exceeding three and two-tenths per cent by weight.'

Section 312.400, passed in 1945, which makes it a crime to sell nonintoxicating beer, provides as far as material here:

'* * * Nonintoxicating beer shall not be given, sold or otherwise supplied to any person under the age of twenty-one years, but this shall not apply to the supplying of nonintoxicating beer to a person under said age for medicinal purposes only, or by the parent or guardian of such person or to the administering of said nonintoxicating beer to said person by a physician.'

The information charged that the defendant, on the 13th day of May, 1951, in Christian County, did

'Unlawfully sell and dispose of certain non-intoxicating beer, in and about his premises, to-wit two bottles of Budweiser beer containing 3.2 per cent of alcohol to one Roscoe Linebaugh, a minor under the age of twenty-one years, without the written permission of the parents of said Roscoe Linebaugh, first had and obtained, and not for medicinal purposes, said Francis Henry not being, then and there, the parent or guardian of said Roscoe Linebaugh nor a licensed physician, * * *.'

It was not necessary for the Prosecuting Attorney to negative all the exceptions in the statute. State v. Brown, 306 Mo. 532, 267 S.W. 864; State v. Smith, 332 Mo. 44, 56 S.W.2d 39; City of Brentwood v. Nalley, Mo.App., 208 S.W.2d 838; State v. McCowan, 331 Mo. 1214, 56 S.W.2d 410; State v. Haliburton, Mo.App., 194 S.W.2d 206.

The statute condemns the sale of nonintoxicating beer to a minor and that is all that was necessary to allege in the description of the offense. However, it does not invalidate the information to negative the exceptions. Sec. 545.030 RSMo 1949, V.A.M.S. They may be treated as surplusage.

Appellant next contends that there is no proof that the beverage sold was nonintoxicating beer. The evidence shows that the complaining witness, Roscoe Linebaugh age 19, on the 13th day of May, 1951, went into defendant's place of business near Highlandville and bought three bottles of beer--two of them from the defendant. He asked for beer and when it was delivered to him, he paid for it and drank it, while sitting on the stool at the counter. All the testimony there is as to the nature of the beverage sold follows:

'Q. What was it you got in that bottle? Was it 3.2 beer? A. Yes.

'Q. Was it served you in brown beer bottles? A. Yes.

'Q. Was there Budweiser labels on it? A. Yes.'

There is another statute defining intoxicating liquor, Section 311.020 RSMo 1949, V.A.M.S.:

'The term 'intoxicating liquor' as used in this chapter, shall mean and include alcohol for beverage purposes, alcoholic, spirituous, vinous, fermented, malt, or other liquors, or combination of liquors, a part of which is spirituous, vinous, or fermented, and all preparations or mixtures for beverage purposes, containing in excess of three and two-tenths per cent of alcohol by weight.'

Another section condemns the selling of intoxicating liquor to a minor. Section 311.310 RSMo 1949, V.A.M.S. So we have two statutes, one for the sale of intoxicating liquor, that is, a liquor that contains more than 3.2% of alcohol by weight (which could include beer, a fermented liquor), and another for selling nonintoxicating beer as defined in Section 312.010, supra.

Of course it is clearly apparent from the testimony in this case that if the prosecuting attorney was trying to prove the alcoholic content of the beverage consumed was not more than 3.2% by weight, the answer of the witness was merely a conclusion or guesswork. He might by sight, taste and smell have known that it was beer but could not by these senses have knowledge of the exact percentage of alcohol it contained either by volume or weight. But, be that as it may, there was no testimony that it contained more than one-half of one percent of alcohol by volume which is an essential element. The fact that it was served in brown bottles or the fact it bore a Budweiser label does not prove the alcoholic content. If it contained more than 3.2% of alcohol by weight, defendant was not guilty of selling nonintoxicating beer but was guilty of selling intoxicating liquor under an entirely different statute and an offense with which he was not charged.

The legislature has gone into great detail in defining nonintoxicating beer and has made it an offense to sell it to minors. To convict one of this offense, the State must prove that the beverage sold was nonintoxicating beer as defined in the statute. Even if there had been absolute proof that the beverage did not exceed in its alcoholic content 3.2% by weight, there is no evidence that it did contain more than one-half of one percent by volume, not to mention the other elements set out in the statute. We cannot take judicial notice that proof of one percentage is proof of the other. Arnold v. United States, 8 Cir., 115 F.2d 523.

We recognize that testimony that a beverage is moonshine is sufficient to prove it...