The State v. Vesper
| Decision Date | 20 December 1926 |
| Docket Number | 27456 |
| Citation | 289 S.W. 862,316 Mo. 115 |
| Parties | The State v. Joe Vesper, Appellant |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge.
Affirmed.
Barney E. Reilly and W. B. Norris for appellant.
(1) Section 21, Laws 1923, under which the defendant was charged and tried, does not apply in this case. Section 21 was intended to cover every kind of unlawful manufacture of whiskey, whether it be designated as hootch, moonshine, or corn whiskey, but does not cover potable alcohol manufactured from rub alcohol. The theory upon which the State attempted to gain a conviction, and did obtain a conviction, was that the co-defendant, Roberts, was at the time of the arrest attempting to manufacture from rub alcohol, an alcohol which would be potable and capable of being used as a beverage. The demurrer offered by the defendant at the close of the evidence should have, therefore, been sustained. State v Wright, 280 S.W. 703. (a) The evidence in the record tended to show, if anything, that Roberts was attempting to reclaim ethyl alcohol that had been denatured; which act was in violation not of Section 21, but of Sections 4 and 24 of the Act of 1923. State v. Pinto, 279 S.W. 145. (b) The court told the jury in instruction number three that if the defendant manufactured hootch or moonshine, they should find him guilty, and in instruction number four the jury were told that the words hootch and moonshine as used in the instruction meant any intoxicating liquor unlawfully distilled for beverage purposes. Alcohol potable and capable of being used as a beverage distilled from other alcohol not potable or capable of being used as a beverage is not hootch or moonshine. The giving of instruction three and four was a reversible error, as there was a failure of proof between the allegation of the information and the evidence introduced by the State. State v. Vandiver, 276 S.W. 1034; State v. Gatling, 267 S.W. 797. (2) The court erred in submitting the case to the jury as there was no evidence tending to show that the defendant was connected with the action of the co-defendant, Roberts, in maintaining the still mentioned in evidence. (3) The answer by the witness that "Vesper thought only one of them ought to be stuck," "that it would be better for only one to get stuck," that "they ought to get by with only one of them being stuck," could at most be construed as a confession and before a conviction can be based upon such confession, there must be such corroboration that when considered in connection with the confession of guilt of the accused, the guilt appears beyond a reasonable doubt. State v. Gatewood, 264 S.W. 42; State v Elmer, 267 S.W. 934; State v. Patterson, 73 Mo 695; State v. Walker, 98 Mo. 95; State v. Knowles, 185 Mo. 141; State v. Myer, 293 Mo. 108. (4) The giving of instruction number seven in this case was error. The defendant did not take the witness stand and testify. The given instruction indirectly brought to the attention of the jury the fact that the defendant, himself, did not deny the testimony of the witness in regard to the statement that the defendant said that he thought "that only one of them ought to be stuck." By this instruction the State obtained an advantage which is prohibited by Sec. 4037, R. S. 1919.
North T. Gentry, Attorney-General, and Walter E. Sloat, of counsel, for respondent.
(1) There was no failure of proof between the allegation and the evidence. An intoxicating liquor which is re-distilled from a product which has been made under government approval, becomes thereby a liquor illicitly distilled and falls within the prohibition statute. State v. Griffith, 279 S.W. 135. Defendant had been seen going into the house in which the still was found and had been seen hauling something away on several occasions. Several cases of alcohol, the same as that found in the house, were also discovered in his car. State v. Gatlin, 267 S.W. 797; State v. Cockrum, 278 S.W. 700; State v. Bennett, 270 S.W. 295; State v. Ayers, 285 S.W. 997. (2) It is largely the province of the trial court to decide how much of a rebuke is necessary to neutralize the danger which may be done by an attorney's statement. The court reprimanded the State's attorney in every instance requested but one and the defense attorneys themselves invited that statement. State v. Sherman, 264 Mo. 374; State v. Pinson, 291 Mo. 328; State v. Hart, 292 Mo. 74; State v. Taylor, 293 Mo. 210; State v. White, 299 Mo. 599.
Appellant was charged with making, distilling, etc., hootch, moonshine or corn whiskey in Andrew County. He was convicted, was sentenced to imprisonment in the penitentiary for two years, and has appealed. One John Roberts was charged jointly with appellant. A severance was taken, and the case as to Roberts was afterward dismissed.
The evidence on the part of the State was that the Sheriff of Andrew County, armed with a search warrant, went out to the Snowden farm near Savannah. He was accompanied by Henry Bruns. They found a still in operation. John Roberts was just coming out of the small building where the still was housed. They also found a large quantity of rub alcohol, which is a denatured alcohol and not potable. They also found some Epsom salts and several packages of concentrated lye. There were a number of empty cases. Fifteen full cases of rub alcohol were found in the room where the still was being operated.
Appellant was not present when the officers found the still and took Roberts in custody. They found him at his home about a mile away. In his automobile truck at this house, there were eight cases of rub alcohol of the same brand as that found at the still. There was evidence tending to show that the liquor which came from the still was intoxicating liquor.
One Douglas, who lived on the Snowden farm, testified that on several occasions he had seen appellant drive up to the house where the still was found. The still was in operation at such times. He had seen appellant back his truck up to the house where the still was and leave something there and he had also seen appellant haul something away in a box covered with canvas.
John Roberts, who was at first jointly charged with appellant, pleaded guilty and was sentenced to serve a year in jail for operating this still. He was called by appellant and testified that he alone owned the still and that appellant had no interest in it and that he only knew appellant when he saw him. He denied telling the sheriff that he was only working for appellant. The sheriff had testified that he overheard appellant say to Roberts that there was no need for them both to get "stuck." Roberts denied that either he or appellant made any such statement.
Henry Bruns testified in rebuttal that Roberts told him he was working for appellant. The sheriff also testified that Roberts told him that he was working for appellant; that he (Roberts) did the work, and that appellant hauled the liquor away. Appellant did not testify.
It is contended that the evidence was not sufficient to support the verdict and that the trial court should have given a peremptory instruction for the jury to find appellant not guilty. This contention is based upon two grounds. The first is, that there is no substantial evidence implicating appellant in the operation of the still, and the second is that the evidence is not sufficient to sustain a conviction under Section 21, Laws of 1923, page 242, upon which the information is based, even if appellant was operating the still and reclaiming ethyl alcohol from denatured alcohol.
We think that the circumstances shown in the evidence were sufficient to make a case to go to the jury on the question of appellant's connection with and responsibility for the operation of the still. He was seen several times driving up to the little house where the still was operated while it was in operation and taking something away in a box covered with canvas. Eight cases of rub alcohol of the same brand used at the still were found in his truck. When he and Roberts were under arrest, he was heard to say to Roberts that there was no need for both of them to get "stuck." He did not testify. Roberts, who denied appellant's connection with the still, was impeached by his former statements that he was merely working for appellant. There was abundant and uncontradicted evidence that the still was being operated in violation of law. We regard the evidence as sufficient to establish the guilty participation of appellant in whatever the crime was which was being committed at the still on the Snowden farm when the sheriff made his raid.
It is the contention that the acts shown to have been committed by appellant and Roberts constituted a violation of Section 4, Laws of 1923, page 238, and not a violation of Section 21 of that act, and that appellant was charged, tried and convicted for violation of said Section 21.
Appellant could have been tried and convicted, upon the evidence in this case, under an information or indictment charging violation of Section 4. But it does not follow that the same act may not also constitute a violation of Section 21. Section 4 denounces as a felony the reclaiming of ethyl alcohol from denatured alcohol. It would seem that a case is made under said section by showing such reclamation by the person charged by any process whatever, without showing the nature and character of the product. For example, whether such product is intoxicating liquor or not, is not...
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