The State v. Stratton

• Decision Date: 20 December 1926
• Docket Number: 27037
• Parties: The State v. James Stratton, Appellant
• Court: Missouri Supreme Court

289 S.W. 568

316 Mo. 240

The State v. James Stratton, Appellant

No. 27037

Supreme Court of Missouri

December 20, 1926

Appeal from Marion Circuit Court; Hon. Virgil L. Drain Special Judge.

Reversed and remanded.

E. W Nelson and Lewis O'Connor for appellant.

(1) The record does not show that the defendant had any proprietary interest in the whiskey mentioned in evidence, but on the contrary shows that the whiskey was hauled into the field in Carpenter's buggy, driven by Carpenter, and that defendant picked up the bottle out of the buggy as Carpenter was in the act of driving away with it, drank out of the bottle and handed it to the others present. The effect of a gift as between the parties to the transaction, if completely executed, is to effectually transfer the full title and ownership in the property from the donor to the donee, as much so, as if the article had been sold for a valuable consideration. In re Soulard, 141 Mo. 656; Dunn v. Bank, 109 Mo. 97; Tomlinson v. Ellison, 104 Mo. 105; Jones v. Falls, 101 Mo.App. 543; McCord v. McCord, 77 Mo. 166; Walter v. Ford, 74 Mo 195. Defendant's Instruction 5 should have been given. (2) Section 21, Laws 1923, p. 242, makes it a felony to give away "hootch" "moonshine" "corn whiskey," or in other words, any unlawfully manufactured whiskey. There is no evidence in the record that the liquor alleged to have been given away was moonshine whiskey. No witness testified that the liquor was moonshine. State v. Wright, 280 S.W. 705; State v. Gatlin, 267 S.W. 799; State v. Starr, 244 Mo. 182. (3) The defendant's demurrer to the evidence should have been given. State v. Gatlin, 267 S.W. 799; State v. Johnson, 209 Mo. 357; 25 R. C. L. 1018, 1019; State v. Bryant, 90 Mo. 538; State v. Reid, 125 Mo. 48; State v. McMahan, 234 Mo. 614.

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

(1) The evidence was sufficient to take the case to the jury. Weight thereof is for their consideration. This court will not interfere. State v. Rowland, 174 Mo. 373; State v. Bennett, 270 S.W. 295; State v. Thogmartin, 270 S.W. 313; State v. Lipps, 267 S.W. 942. (2) Defendant complains of the refusal of the court to give defendant's instruction numbered 5. There was abundant evidence to show possession of bottle and contents with the full knowledge and consent of the defendant. Defendant's own statement implies it was moonshine whiskey. Such liquor is declared to be contraband and stripped of all property rights. Impossible to show legal ownership. Such showing is not necessary. Sec. 25, p. 244, Laws 1923. (3) The courts will take judicial notice that whiskey is intoxicating liquor. State v. Griffith, 279 S.W. 135; State v. Dengolensky, 82 Mo. 45; State v. Williamson, 21 Mo. 498; Black on Intoxicating Liquor, par. 12, p. 14; Bishop on Statutory Crime, par. 1038.

OPINION

Blair, J.

Defendant was convicted of giving away moonshine whiskey, in violation of Section 21 of Laws of 1923, page 242; was sentenced to imprisonment in the penitentiary for two years, and has appealed.

The defendant offered no testimony. The evidence offered on the part of the State tends to show that on or about July 25, 1923, one Carpenter drove his horse and buggy to a field on a farm in Marion County, where defendant and others were baling hay, and that defendant took a bottle from Carpenter's buggy and drank from it, put it between two bales of hay and afterwards passed the bottle around among some of his co-workers and gave them a drink out of the bottle. There was evidence tending to show that the liquor contained in the bottle was whiskey. There was no evidence that such liquor was moonshine whiskey or other illegally manufactured whiskey, the giving away of which is denounced as a felony by said 1923 Act. The only mention of the term "moonshine whiskey" in the entire testimony is in a question to which the trial court sustained an objection, and the proof was not afterwards tendered in any other manner. At another place in the record it appears that one of the persons who drank some of the liquor said at the time he drank it that it was as good as bottled-in-bond whiskey. Even if such recommendation of the liquor had been given in testimony by a witness at the trial, the fact that the whiskey was as good as bottled-in-bond whiskey would not prove that it was not such bonded whiskey or that it was illegally manufactured.

The indictment charged that the defendant gave away moonshine whiskey. It was necessary for the State to prove that the liquor was moonshine whiskey.

In State v. Gatlin, 267 S.W. l. c. 799, we said: "The statute on which this prosecution is based declares the transportation of 'hootch,' 'moonshine,' 'corn whiskey,' to be a felony. In this case the evidence is that the jugs and jars transported contained whiskey; there is no evidence that they contained corn whiskey. Hence the court erred in overruling the demurrer to the evidence."

The trial court should not have submitted the case to...