Weller v. State

• Decision Date: 10 March 1926
• Docket Number: 11.
• Citation: 132 A. 624,150 Md. 278
• Parties: WELLER v. STATE.
• Court: Maryland Court of Appeals

132 A. 624

150 Md. 278

WELLER v. STATE.

No. 11.

Court of Appeals of Maryland

March 10, 1926

Appeal from Circuit Court, Washington County; Albert A. Doub, Judge.

"To be officially reported."

Henry Weller was convicted of manufacturing intoxicating liquor for sale, and he appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

Levin Stonebraker and Augustine S. Mason, both of Hagerstown, for appellant.

Thomas H. Robinson, Atty. Gen., John Hubner Rice, Asst. Atty. Gen and Ellsworth R. Roulette, State's Atty., of Hagerstown for the State.

PARKE J.

The appellant was indicted and tried for the sale, the manufacture for sale, and the purchase for sale of intoxicating liquor, in violation of the local liquor law of Washington county. He demurred to the indictment, and, on the demurrer being overruled, made a motion to quash the second count of the indictment, which charged a manufacture for sale, on the ground that it did not negative the possibility that the manufacture for sale of intoxicating liquor was pursuant to the license and authority of the United States. The traverser was not indicted for an offense under the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), but for one against the local liquor law of Washington county, and so the offense charged was against the laws of Maryland, which, in the lawful exercise of its sovereignty, had forbidden the manufacture for sale of intoxicating liquor within one of its political units. Hence the motion to quash was rightly refused. See Underhill's Criminal Evidence (3d Ed.) § 725; Molinari v. State, 119 A. 291, 141 Md. 565; Ulman v. State, 113 A. 124, 137 Md. 642; Weisengoff v. State, 123 A. 107, 143 Md. 638; Guy v. State, 54 A. 879, 96 Md. 692. Nor was there sufficient ground for the demurrer. The indictment was drawn under section 5 of chapter 30 of the Acts of 1916, as amended by chapter 10 of the Acts of 1924, and it was framed conformably to the recognized and correct practice where the crime is of a statutory creation, as the several counts of the indictment charged the offense in the language of the statute, and negatived such exceptions to the operation of chapter 30 of the Acts of 1916, as have been allowed by subsequent legislation. Acts of 1916, c. 30; Acts of 1924, c. 10; Reynolds v. State, 119 A. 457, 141 Md. 639; Kelly v. State, 114 A. 888, 139 Md. 204, 208; Howes v. State, 119 A. 297, 141 Md. 532; Foxwell v. State, 125 A. 893, 146 Md. 90; Kiefer v. State, 40 A. 377, 87 Md. 562; Curry v. State, 83 A. 1030, 117 Md. 587; Benesch v. State, 99 A. 702, 129 Md. 505, 518.

The traverser demanded a bill of particulars disclosing the kind of intoxicating liquor meant by the general terms of the indictment, and the bill of particulars furnished disclosed that the intoxicating liquor or beverage mentioned in the indictment was whisky. Bagby's Code, art. 27, § 561. There was no evidence of a purchase of whisky for sale, nor sufficient proof of its sale within a year preceding the indictment; but the trial of the appellant resulted in a conviction on the second count of the indictment for the manufacture for sale of intoxicating liquor, and an appeal was taken from the judgment of the court. The remaining questions brought up by the appeal are presented by eleven bills of exceptions, which were taken to rulings on the evidence, which fall into two groups, the first of which related to the illicit manufacture of whisky for sale, and the second to admissions of the traverser tending to establish that he was unlawfully manufacturing whisky for sale.

1. The state's evidence tended to prove that the traverser owned a property in Washington county, where, on the night of April 30, 1925, were found, on the first floor of a warehouse, 25 mash barrels, every one with a capacity of 50 gallons; a still of 150 gallons capacity; a gas engine; three 50-gallon barrels; and 3,200 pounds of rye and corn meal. When the raiding officers reached the premises, the still was not actually in operation, but it had been a very short time before their arrival, as the cap had been recently removed, the mash was smoking, and steam was arising from the still. In the 25 mash barrels were about 1,000 gallons of fermenting mash, ready for distillation, and the 3 barrels were full, and some of their contents were yet warm from the still. After samples of the mash and of the contents of the barrels had been taken by the officers, and marked for identification, the plant was destroyed, and one of the officers went to traverser's residence and notified him to appear the next morning before the United States commissioner at Hagerstown.

The prosecution offered proof by competent witnesses, under the third exception, that the dismantled plant was a still and its equipment; under the first exception, that the liquid in the three barrels was distilled spirits; under the fifth and seventh exceptions, that the distillation smelled like "moonshine whisky" and "moonshine"; under the eighth and ninth exceptions, that the chemical analysis of the liquid in the barrels established it to be what was known in the art as the forerunnings from the distillation and that the liquid was distilled spirits, known under the general term of moonshine whisky, and whose alcholic contents by volume were 10.90 per centum, and whose proof was 21.8, being twice the alcoholic contents by volume; under the tenth exception, that the bottled sample of the mash taken from the mash barrels showed it fit for distillation, with 2.32 per cent. of alcohol by volume; and, under the eleventh exception, that the barrelled distilled spirits was an intoxicating liquor. As might have been anticipated, all these rulings of the trial court have been under consideration in appellate tribunals, and find support in their decisions. The testimony...