State v. Sedlacek
| Decision Date | 01 October 1925 |
| Docket Number | 5738. |
| Citation | 239 P. 1002,74 Mont. 201 |
| Parties | STATE v. SEDLACEK. |
| Court | Montana Supreme Court |
Appeal from District Court, Richland County: Frank P. Leiper, Judge.
Fred Sedlacek was convicted of selling and possessing intoxicating liquor, and he appeals. Affirmed.
L. V Ketter, of Sidney, for appellant.
L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for the State.
By an information in two counts the defendant was charged with the unlawful sale of intoxicating liquor and with the unlawful possession of intoxicating liquor. He was convicted upon both counts, and has appealed from the judgment and from an order denying him a new trial.
1. It is the principal contention of counsel for defendant that the trial court adopted an erroneous theory of the case, and various phases of this contention are presented in more than one-half of the assignments of error.
Omitting the introductory allegations, the first count of the information charges that:
"On or about the 28th day of September, 1924, and before the filing of this information, the said defendant did willfully, unlawfully, wrongfully, knowingly, and intentionally sell certain intoxicating liquors, to wit, certain spirituous liquid containing more than one-half of one per centum of alcohol by volume, which was then and there fit for use for beverage purposes, to divers and sundry persons, and which said act was then and there prohibited and unlawful, contrary to the form, force, and effect of the statute," etc.
The case made by the state rests on the testimony of E. R. Small, a prohibition enforcement officer, and Leslie Hauberg, an agent employed to assist him. The story told by these witnesses is that on Sunday morning, September 28, 1924, they, with a Mr. Bruner, a boy named Riley, and a man whose name was not known to them, drove in Small's car to defendant's home in Richland county; that when they arrived defendant came to the car, and he and Bruner then went into the house; that Bruner returned in a few minutes with a soda pop bottle filled with liquor; that Small and Hauberg each drank from the bottle and recognized the contents as moonshine whisky; that Small then went to the house, knocked on the door, and when the door was opened, asked defendant for a couple of bottles of "moon" or "moonshine;" that defendant stepped into another room of the house and returned immediately with two soda pop bottles each filled with liquid; that when asked the price defendant replied "$2"; that Small then paid him two silver dollars, took the bottles, and returned to his companions, who were not more than 40 or 50 feet away, opened one bottle, and Small, Hauberg, and Bruner drank about one-half of its contents; that Small and Hauberg left soon after the purchase was made. Small testified that later he smelled and tasted the contents of the other bottle, and that each bottle at the time the purchase was made was filled with moonshine whisky. Hauberg testified that the bottle from which he drank contained intoxicating liquor.
Counsel for defendant insist that, since the state through the county attorney charged a sale of a particular kind of liquor, "to wit, certain spirituous liquid containing more than one-half of 1 per centum of alcohol by volume, which was then and there fit for use for beverage purposes," the burden was upon it to prove the charge as made; that evidence that the bottles contained moonshine whisky was irrelevant; and that there is a variance between the pleading and proof which amounts to a failure of proof.
Section 11048, Revised Codes, provides that the word "liquor" or the words "intoxicating liquor" shall include (1) alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine; and (2) in addition thereto, any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume, which are fit for use for beverage purposes. In other words, this section describes all intoxicating liquors and comprises them all in two general classes. The first includes the liquors in more or less common use at the time the Eighteenth Amendment to the federal Constitution was adopted; the second class, created for the purpose of preventing evasions of the law, includes liquors, liquids, and compounds (not comprehended by any of the liquors specifically enumerated in the first class); that is, nostrums, quack medicines, hair tonics, flavoring extracts, or other decoctions which contain one-half of 1 per centum or more of alcohol by volume, and which are fit for use for beverage purposes.
Section 11111 provides that in prosecutions under the laws of this state relating to intoxicating liquors it shall not be necessary to state the kind of liquor manufactured, sold, etc.; a general description of the liquor by the designation "intoxicating liquor" is sufficient (State v. Fredericks, 65 Mont. 25, 212 P. 495; State v. Jenkins, 66 Mont. 359, 213 P. 590; State v. Knilans, 69 Mont. 8, 220 P. 91; Massey v. United States [C. C. A.] 281 F. 293); and this is true whether the liquor belongs to the first or the second class mentioned in section 11048. If the liquor belongs to the first class mentioned in that section, the prosecution need go no further than to show that it is alcohol, brandy, whisky, rum, gin, beer, ale, porter or wine, as the case may be, for every liquor of the first class is a beverage; that is, in contemplation of law it is fit for use for beverage purposes; but if the liquor belongs to the second class, the state must then show that it contains one-half of 1 per centum or more of alcohol by volume, and that it is fit for use for beverage purposes. To summarize: Section 11111 prescribes the rule of pleading in these liquor cases, while section 11048 controls the method of proving the charge made.
It is a general rule that if the charge contained in an indictment or information does not apprise the accused sufficiently to enable him to prepare his defense, he may demand and receive a bill of particulars (2 Bishop's New Criminal Procedure, § 643), and that rule is made applicable to procedure in liquor cases by section 11078 (State v. Griebel, 65 Mont. 390, 211 P. 331). If a bill of particulars is furnished, its effect is to restrict the state to proof of the matters thus specifically set forth. Rogness v. Northern P. R. Co., 59 Mont. 373, 196 P. 989, and note 8 A. L. R. 550. It is equally well settled that if the pleading, though unnecessarily, describes the subject-matter so minutely as practically to amount to a bill of particulars, the same rule applies, and the pleader is restricted in his proof accordingly. Anderson v. Rucker Bros., 107 Wash. 595, 183 P. 70, 186 P. 293, 8 A. L. R. 544.
We have, then, presented by this record an allegation unnecessarily and inexcusably made more specific than it need be made, charging an unlawful sale of a particular kind of intoxicating liquor designated by the description given as a liquor other than and different from alcohol, brandy, whisky, rum, gin, beer, ale, porter, or wine, whereas the evidence discloses a sale of moonshine whisky. In State v. Marchindo, 65 Mont. 431, 211 P. 1093, this court referred to moonshine whisky as whisky of the moonshine kind. In State v. English, 71 Mont. 343, 229 P. 727, we referred to moonshine whisky as intoxicating liquor, and it was so treated in State v. Critzer, 122 Wash. 88, 209 P. 1081, and in State v. Harris, 106 Or. 211, 211 P. 944.
It is notorious that the words "moonshine whisky" describe a well-known article of illicit commerce. The word "whisky" indicates a distilled liquor whose properties and methods of production are so generally known that it is declared to be intoxicating as a matter of law. The word "moonshine" in that connection merely describes the method of production; that is, it characterizes the whisky as illicitly distilled or produced. Funk & Wagnalls Standard Dictionary. In other words, "moonshine whisky" is whisky within the meaning of section 11048, even though it may contain fusel oil, and is not aged or proved as was the whisky in commerce at the time the Eighteenth Amendment was adopted. United States v. Golden (D. C.) 1 F. (2d) 543.
By proving a sale of moonshine whisky the state proved a sale of whisky within the meaning of the statute, hence a sale of intoxicating liquor, but a liquor different from that described in the information. This presents a variance within the meaning of that term adopted by this court in State v. Crean, 43 Mont. 47, 114 P. 603, Ann. Cas. 1912C, 424.
We are unable to agree with the Attorney General that the portion of the first count, which we have italicized for convenient reference, should be treated as surplusage and disregarded. To the extent that the information describes the kind of liquor alleged to have been sold, to that extent it serves the purpose of a bill of particulars and restricts the state in the matter of proof. In State v. Marchindo, above, the defendant was charged with the unlawful sale of "certain intoxicating liquor known as whisky." It was held that the proof corresponded to the pleading, but there is the intimation that the words, "known as whisky," might have been treated as surplusage. Clearly this last observation was pure dictum, and the same dictum appears in the opinion in State v. Jenkins, above, where the question presented was whether the trial court erred in permitting the information to be amended to meet the proof. The dictum in each instance is disapproved.
But it does not follow as a necessary consequence that the integrity of the judgment is affected by the variance. The rule at common law that the...
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