State v. BurkState v. Burk
- Reporters:
- , ,
- Before:
- Brown
— Defendant was convicted of violating the Local Option Law in force in the city of Aurora in Lawrence county; and from a judgment of the circuit court of that county imрosing a fine of $300, appealed to the Springfield Court of Appeals, where the judgment of the trial court was affirmed. However, as one judge of the last named court was of opinion that the law as declared by that court in this case is in conflict with рrior decisions of this court and of the St. Louis and Kansas City Courts of Appeals, the cаse was transferred here. ’
The information charges the defendant with unlawfully selling “distilled, fermеnted and intoxicating liquor, to-wit, one bottle of beer.” The instruction of the court authоrized a conviction if the jury found that the defendant had sold “intoxicating liquor, to-wit, beer.” Thе evidence shows the sale by defendant to one Lewis Minor, of two cases of a beverage labeled ‘ ‘ Piltzner-Beer. ’ ’
The evidence of witness Minor was to the effect *578that Piltzner beer was. a heavy, intoxicating beеr, but that the particular lot he purchased of defendant was very light colored. Said witness was doubtful whether or not it would intoxicate, but thought it would not, unless the party drinking same was nоt accustomed to ‘.the use of intoxicating liquor. There was evidence of an admission by the defendant that the beverage sold to witness Minor was too strong to sell in a local option county, and that he did not use it in his general trade as a restaurant kеeper. There was also evidence that defendant had admitted that all the beverages sold by him contained from forty one-hundredths of one per cent to two per cent of alcohol.
Defendant asks a reversal of the judgment for the • follоwing reasons :
1st. -The admission of improper evidence;
2d. A variance between the charge and the evidence ;
3d. Improper instructions;
• 4th. Lack of evidence to support a conviction.
The defendant was not sworn, and his defense, as indicated by the instructions which hе requested and his cross-examination of the State’s witnesses, is that - the beverages which he sold were not intoxicating.
OPINION.
I. The evidence of statements made by the defendаnt’s grandson are admissible, because made in the presence and hearing of defendant at a time when he was not under restraint or duress, and his failure to deny such statements at the time raises the presumption that they were true. [State v. Walker, 78 Mo. l. c. 388; Statе v. Swisher, 186 Mo. 1.]
The evidence of Marshal Oalbraith that he believed defendant guilty, was improрer, but its admission does not constitute reversible error, because not objected to by defendant and because no effort was made by defendant to have it strickеn out or withdrawn from the jury.
*579II. The alleged variance between the charge and the еvidence is not an error of which defendant can now complain. His motion for a new trial raises no snch issue, and it is the special province of the trial court to pass on matters of variance. [See. 5114, R. S. 1909; State v. Crow, 107 Mo. l. c. 345.]
III. The instructions; on behalf of the State, as well as the one given on behalf of the defendant, required the jury, before it could convict, to find that the beverage sold by defendant was an intoxicаting liquor; and were therefore more favorable to the defendant than the law dеmanded. The instructions correctly announced the law, except that they cаst upon the State a greater burden than the law required; but the defendant can not сomplain of an error committed in his favor. [State v. Stewart, 90 Mo. 507; State v. Hunter, 181 Mo. l. c. 337.] In a prosecution of this character, it is only necessary for the State to provе that defendant sold a beverage which contained’ some percentage of alcohol, however small; and it is wholly unnecessary to furnish proof that such beverage would intoxicate those who drank it. [Sec. 7243, R. S. 1909; State v. Martin, 230 Mo. 1.] The words “intoxicating liquor” as used in the Local Option Law of our State embrace every kind of beverage which contains any percentage whatever of alcohol; and statutes and decisions of other states defining such words in a different manner are no longer authority in Missouri. [State v. Hanson, decided at this term, and reported at page 583 of this volume.]
IV. Thеre is substantial evidence on the part of the State that the beverage sold by thе defendant to witness Lewis Minor not only contained alcohol, but was of a quality which would intoxicate.
The record of the trial court contains no reversr ble error, and its judgment is therefore affirmed.
Kennish, P. J., and Ferriss, J., concur.