The State v. Mitts

• Citation: 289 S.W. 935,315 Mo. 1320
• Decision Date: 20 December 1926
• Docket Number: 27073
• Parties: The State v. Ora Mitts, Appellant
• Court: United States State Supreme Court of Missouri

289 S.W. 935

315 Mo. 1320

The State v. Ora Mitts, Appellant

No. 27073

Supreme Court of Missouri

December 20, 1926

Appeal from Cass Circuit Court; Hon. Ewing Cockrell, Judge.

Affirmed.

Hairgrove & Sloan for appellant.

(1) Specific attention is called to the title of the Act of 1923 because of the contention of the defendant that the act is unconstitutional. This act purports to repeal Sections 6591 6597, 6604, R. S. 1919, and Section 6595 of the Act of 1921 yet nowhere in the title to said act was it expressed that said sections were to be repealed and new sections substituted therefor. State v. McEniry, 269 Mo. 228; Sedalia ex rel. v. Smith, 206 Mo. 346; State v. Julow, 129 Mo. 163; State v. Doerring, 194 Mo. 398. (2) Section 2 of the Act of 1923, and Section 21 are in conflict in regard to the penalty, and the giving by the court of Instruction 1, was within itself reversible error. The information charges two separate and distinct offenses and the defendant was tried upon both counts of the information. It is the duty of the court to instruct the jury upon all matters of law involved in the case, and this we contend was not done in this case, and that really only one instruction was given, and that instruction embraced only one offense. The record fails to disclose anywhere that either of the charges in the information were dismissed prior to the case being finally submitted to the jury. The court in its Instruction 1 nowhere gave any instruction in regard to possession of the still, although in the trial great stress was placed upon the still and all of the parts thereof, over the objections of the defendant. (3) The jury were instructed to find defendant guilty if they found from the evidence beyond a reasonable doubt that defendant "unlawfully did make corn whiskey or did in any way aid, assist or encourage Lee Mullin or William McKinney in making any corn whiskey." Nowhere in the information was defendant charged with aiding, abetting or assisting in the making of corn whiskey, and it was an error on the part of the court to give any such intruction. (4) The intention of the law was not to prohibit the making or traffic in non-intoxicating liquor, and when liquor was named by any other name it must be shown to contain at least one-half of one per cent of alcohol by volume. The alcoholic content by volume must be proven by the State, and the failure to so prove when called to the attention of the court by a demurrer at the close of the evidence on the part of the State, should have been sustained. Marks v. State, 159 Ala. 71; People v. Strickler, 26 Cal.App. 60, 142 P. 1121.

North T. Gentry, Attorney-General, and H. O. Harrawood, Special Assistant Attorney-General, for respondent.

(1) The question of constitutionality must not only be raised at the first possible opportunity but must be kept alive. This was not done. The constitutional question attempted to be raised has been passed upon repeatedly by the courts. The act is constitutional. State ex rel. v. Gordon, 261 Mo. 632; State v. Miller, 45 Mo. 632; State v. Mullinix, 301 Mo. 385; Asel v. City of Jefferson, 287 Mo. 203; State v. Wright, 280 S.W. 703.

OPINION

White, J.

On December 3, 1925, in the Circuit Court of Cass County, on a jury trial, the defendant was found guilty of manufacturing corn whiskey, and his punishment assessed at two years' imprisonment in the penitentiary. The trial court entered judgment accordingly, and the defendant appealed.

The evidence shows that on the night of October 1, 1925, John Lewis, a justice of the peace, and Ernest Wales, Constable of Mt. Pleasant Township in Cass County, went to a house about four miles south of Belton, where they saw persons passing in and out as if engaged in some mysterious operation. After waiting through the night, about three o'clock A. M. they entered the house and found the defendant Ora Mitts, one Lee Mullins, and one William McKinney eating breakfast. A still was in operation there whereby corn whiskey was being manufactured. The place belonged to Carl Mullins, who was away from home at the time. Lee Mullins was his father.

The evidence shows a contest between Ora Mitts and the other two men as to who was guilty of operating the still. Mullins and McKinney appeared as witnesses for the State, and testified that Ora Mitts owned the still, brought it there, and Carl Mullins, the owner of the place, knew nothing about it. Other members of the Mullins family testified that when Mitts brought the still to the place he said that he (Mitts) was entirely responsible and would take all the blame for it; Carl Mullins had nothing to do with it. The State put in evidence other statements made by Mitts to the effect that if he had not been arrested at the time he would have run off the stuff and the officers would not have known anything about it.

The defendant introduced evidence tending to show that it was Lee Mullins and Will McKinney who were operating the still; that he did not own it, had nothing to do with it, and was only a visitor at the time.

I. The defendant first filed a motion to quash the information on the ground that the Act of 1923, under which the prosecution was had, was unconstitutional. The appellant kept the constitutional question alive by assigning error in his motion for new trial to the action of the court in overruling his motion to quash. There was no other way in which he could continue his objection to the constitutionality of the statute during the progress of the trial except to challenge the sufficiency of the evidence, and this he did. This court in case of State v. Tallo, 308 Mo. 584, 274 S.W. 466, held the act to be constitutional as against an attack upon the sufficiency of the title. The precise objection here, not touched upon by that case, is that Section 29, page 247, Laws 1923, expressly repeals Sections 6591, 6597 and 6604, Revised Statutes 1919, and no suggestion of such repeal appears in the title. If we understand the argument it is that, because Section 29 is not authorized by the title, the entire act fails. That is not the law. One or more sections of the act may be held unconstitutional without affecting other sections of the same act.

It further seems to be contended that because Sections 6591, 6597 and 6604 are not repealed by the act on account of the infirmity in the title, those sections are still in force, and Sections 2 and 21 of the Act of 1923, under which defendant was tried, being in conflict with them, would fail; if appellant's argument means anything it means that. Counsel overlook the rule that a statute may be repealed by implication. This court said in case of State ex rel. Matacia v. Buckner, 300 Mo. l. c. 367: "Repeals by implication are not dependent upon the presence in titles or acts under them of express mention of the matter so repealed."

Thus, if the sections under which the appellant was prosecuted are in conflict with Sections 6591, 6597 and 6604, then the latter are repealed by implication, and no mention of them in the title or in the body of the act was necessary. If the sections under which the defendant was prosecuted are consistent with those sections, then they all remain in force and effect and there is no basis for the defendant's contention.

II. Defendant filed a demurrer to the evidence at the close of the State's case and again at the close of all the evidence. It is argued that the evidence did not show that the liquor, which the defendant was charged with manufacturing, was in fact intoxicating, or that hootch, moonshine or corn whiskey was intoxicating, and a case could not be made out unless the fact of its intoxicating character was proven, either by actual test or by some experiment showing its alcoholic content.

Neither Section 21, nor Section 2, of the Act of 1923, requires any particular alcoholic content in the liquor, the...