The State v. Wright

• Decision Date: 15 February 1926
• Docket Number: 26870
• Citation: 280 S.W. 703,312 Mo. 626
• Parties: THE STATE v. TOM WRIGHT, Appellant
• Court: Missouri Supreme Court

280 S.W. 703

312 Mo. 626

THE STATE v. TOM WRIGHT, Appellant

No. 26870

Supreme Court of Missouri

February 15, 1926

Appeal from Pemiscot Circuit Court; Hon. Henry C. Riley Judge.

Affirmed.

Von Mayes for appellant.

(1) Where the information charges the defendant with manufacturing "corn whiskey" and the proof is confined to manufacturing "whiskey," the State has not made out a case. State v. Gatlin, 267 S.W. 797. (2) The evidence must show that the offense was committed in the county where the prosecution is had. The venue, however may be established by circumstantial evidence alone. State v. Palmer, 220 S.W. 680; State v King, 111 Mo. 576; State v. Apperger, 80 Mo. 173.

North T. Gentry, Attorney-General, and James A. Potter, Special Assistant Attorney-General, for respondent.

(1) Sufficient evidence was presented by the State to make a case for the jury. State v. Bennett, 270 S.W. 295; State v. Thogmartin, 270 S.W. 313; State v. Lipps, 267 S.W. 942; State v. Huckabe, 269 S.W. 691; State v. Ware, 274 S.W. 853. (2) The court submitted this case to the jury under proper instructions. State v. Perry, 267 S.W. 828; State v. Thogmartin, 270 S.W. 313; Laws 1923, p. 237, sec. 2.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On February 28, 1924, the Prosecuting Attorney of Pemiscot County, Missouri, filed in the circuit court of said county an information jointly charging the defendant, Tom Wright, Jess Wright and Louis Wright, with the violation of the intoxicating liquor laws of Missouri, on or about the -- day of December, 1923, in the county and state aforesaid.

In the first count they were charged with the felonious manufacture of one gallon of white corn whiskey. In the second count said defendants were charged with the felonious sale of one-half pint of white corn whiskey on above date, in the county and state aforesaid. The jury returned a verdict for appellant herein on the second count of the information, which eliminates said count from further consideration herein. The third and fourth counts of said information, were dismissed by the State before the commencement of the trial, which leaves only the first count for our consideration.

On November 28, 1924, on application of defendants, a severance was granted, and the State elected to try Tom Wright first. On the last-named date, appellant was arraigned, and refused to plead to said information, thereupon the court entered a plea of not guilty for him. The case was tried before a jury on the above date, and the following verdicts returned:

"We, the jury, find the defendant Tom Wright guilty as charged in the first count in the information and assess his punishment at two years in the Penitentiary.

"Sid Henry, Foreman.

"We, the jury, find the defendant not guilty as charged in the second count in the information.

"Sid Henry, Foreman."

On December 1, 1924, appellant filed motions for a new trial and in arrest of judgment. Both motions were overruled and, on December 3, 1924, allocution was granted appellant, judgment rendered and sentence pronounced in conformity with the terms of said verdict. Thereafter appellant was granted an appeal to this court.

The facts as shown by the record are correctly stated by counsel for respondent as follows:

"The evidence for the State tends to show the following facts: That at the time mentioned in the information, the defendant, Tom Wright, lived in two rooms of a three-room house in the town of Deering, in Pemiscot County, Missouri; that one Fred Curtis and his wife, Lilly Curtis, occupied the other room in such three-room house.

"The witness E. P. Curtis testified that he bought whiskey from the defendant several times during the year 1923, and that defendant also sold whiskey during said year to other people. He also testified that he had seen some mash barrels and about a gallon or two of mash in the house of the defendant, Tom Wright, and that he had seen part of a worm.

"State's witness Lilly Curtis testified that a few days before Christmas in 1923, she saw the defendant, Tom Wright, and his brother making whiskey on a cook stove in the rooms occupied by the defendant in the same house where the witness at that time lived. The witness stated that at that time the defendant was making whiskey to fill two large jugs.

"State's witness Braschler testified that on December 29, 1923, he was a school teacher at Deering and also a deputy sheriff; that on the night of that day, he was requested to go with someone to a place, afterwards identified as the home of defendant, to quell some trouble; that while he was at the home of the defendant, he saw some empty barrels under the drip at the north side of the house with some fermented material in two of them.

"Defendant's evidence consisted of a denial of all the evidence introduced by the State which tended to show his guilt under any charge contained in the information. In other words, he denied absolutely that he had ever manufactured or sold any corn whiskey in Pemiscot County, Missouri.

"Prior to the trial, the record shows, the defendant filed a motion for a continuance, but neither the motion nor the action of the court thereon is preserved in the bill of exceptions, and the action of the trial court thereon, if any, is not before this court.

"The transcript of the record also tends to show that the defendant at some time filed an application for a change of venue, but neither the application nor the ruling of the court thereon is preserved in the bill of exceptions, hence the action of the trial court on such application it not here for review.

"The only preliminary motion contained in the bill of exceptions is one to quash the information, because of the improper joinder of counts charging felonies with counts charging misdemeanors. But in view of the fact that the prosecuting attorney dismissed the misdemeanor counts, no error can be predicated from the failure of the court to sustain such motion."

I. The information is in proper form. [Laws 1923, p. 242, sec. 21; State v. Forshee, 308 Mo. 651; State v. Bunch, 270 S.W. 282; State v, Richardson, 267 S.W. 841; State v. Brown, 262 S.W. 710.]

II. Defendant in his brief contends that the venue was not proven in this case. Upon examination of the record, we find sufficient evidence to sustain the verdict in respect to this matter. Aside from the foregoing, the motion for a new trial does not assign as error the alleged failure of the State to prove the venue. The above contention is accordingly overruled.

III. The brief filed by appellant does not complain of any of the instructions given in the case, nor does the motion for a new trial point out any alleged errors in respect to same. If the State was entitled to go to the jury on the facts, the instructions properly declared the law. [State v. Knight, 312 Mo. 411; State v. Taylor, 267 Mo. l. c. 48.]

IV. The first count of the information charges that on the -- day of December, 1923, the defendant, Tom Wright, in Pemiscot County, Missouri, unlawfully and feloniously did manufacture one gallon of white corn whiskey, etc. The State proved, without objection by substantial evidence that defendant, on the date aforesaid, in Pemiscot County, Missouri, manufactured "whiskey," but the evidence did not describe it as "white corn whiskey." In appellant's brief, it is alleged, that: "There was no proof that the defendant manufactured white corn whiskey, but there was proof that he manufactured whiskey." It is insisted that the evidence offered by the State is insufficient to support the verdict, and that the demurrer to the evidence at the conclusion of the case should have been sustained. He likewise contends that he was convicted of a felony under Section 21, Laws 1923, pages 242-3, while the testimony offered by the State disclosed that he was only guilty of a misdemeanor for manufacturing intoxicating liquors in violation of Section 6588, Revised Statutes 1919, as amended by Laws 1921, page 414, and Section 22, Laws 1923, page 243. It is not claimed that defendant had any authority for manufacturing corn whiskey or any other kind of whiskey. On the contrary, he denied making any kind of whiskey, and went to the jury on that issue.

It will be observed in passing that whiskey is not in terms mentioned in Section 6588, Revised Statutes 1919, as amended by Laws 1921, page 414, and Section 22, Laws 1923, page 243. We are therefore confronted with the proposition, as to whether Section 21, Laws 1923, pages 242-3, was intended to cover every kind of unlawful manufacture of whiskey, whether it be designated as "hootch," "moonshine," "corn whiskey," "rye whiskey," "white mule," or "whiskey," known by any other name.

We are of the opinion that if the information in this case had simply charged in the first count thereof that defendant on the date aforesaid unlawfully manufactured whiskey in Pemiscot County, Missouri, it would have described a felony within the purview of Section 21, Laws 1923, pages 242-3, and that, the proof in this case would have been sufficient to sustain the verdict herein. It is well established that the courts will take judicial notice of the fact, without allegation or proof, that whiskey is intoxicating liquor, and that it is generally used as a beverage. [State v. Williamson, 21 Mo. l. c. 498; State v. Dengolensky, 82 Mo. l. c. 45; State v. Griffith, 311 Mo. 630; 3 Brill's Cyclopedia of Crim. Law, secs. 1376-1382; State v. Edwards, 210 P. 1079; State v. McClinton, 94 So. 141; State v. Critzer, 209 P. 1081; Bland v. State, 244 S.W. l. c. 1024; State v. Carmody, 50 Ore. 1; Briffitt v. State, 58 Wis. 39; Marks v. State, 159 Ala. l. c. 80; Black on Intoxicating Liquors, sec. 12, p. 14; 2 McClain on Crim. Law, secs. 1218-1220;...