*1 COURT OF State v. Cardwell. Appellant. THE STATE v. BUCK CARDWELL, Two, December Division Intoxicating Liquor. 1. INFORMATION: The information set out opinion, charging unlaw- that “did then and there defendant fully, wilfully feloniously hootch, transport moonshine and whiskey,” pun- assessing support is held sufficient a verdict years’ imprisonment. ishment at two 2. INSTRUCTION: Converse. in- entitled to a converse Defendant is it, requests struction to the State’s main instruction when equivalent unless the one con- State contains clause to a a part verse instruction. But a instruction is no of converse case, part defense, is de- of and if he defendant’s one, subject present sires an instruction on the should either give or ask the such an instruction. Feloniously: (Laws 3. -: Omission Moonshine. The Act of 1923 1923, p. 21) allege require sec. does the State to not prove, assessing in order sustain a a verdict conviction and punishment years’ imprisonment, fe- at two the defendant loniously transported whiskey; moonshine and an instruction simply “fe- the State is not erroneous because it omits the word loniously.” Unlawfully: Whiskey. 4. -: Omission Moonshine 242) (Laws p. provides any person 1922;, of the Act that “if any transport hootch, whiskey, moonshine, shall or corn he shall felony be . . Provided: That section shall apply whiskey lawfully manufactured, not ported the case trans- Held, unnecessary it or sold.” is that the instruction ‘‘unlawfully” require whiskey for the transported, that the moonshine transporting with where defendant is moon- charge. shine and the evidence sustains the A defendant unlawfully transporting under said 21 for can convicted alleging proving without fe- even corn it was loniously transported; proviso thereto should con- not be transportation strued to authorize of “hootch” or moonshine circumstances. under Definition. -: Moonshine: Whether the word (Laws p. 243) the Act of 1923 used in Section intoxicating liquor unlawfully “any is made” left for determination question presented issue; is as a its a case which live necessary in this in which determination transporting “hootch, charged with moonshine and corn whis- evidence, variance, key” contradiction or was that OCTOBER TERM, 1925. transporting “jar whiskey” lie was “moonshine corn full of and a whiskey.” charge Since'the and the uncontradieted were that he was de- *2 prejudiced by defining fendant an instruction “any intoxicating liquor made,” unlawfully to mean whether wrong. right definition Law, X, 13; 2497, p. 1055, 2499, p. Criminal 16 C. Section n. Section 26; 1058, 32; X, p. 3705, p. 348, 85; p. 349, n. n. 17 C. Section n. n. Intoxicating Liquors, X, 197, p. 580, 23; 33 91. C. Section n. Section 547, p. 791, p. 721, 40; 37; p. n. n. 86. n. Taney Appeal Circuit Court.—Hon. Fred Stewart,
Judge.
Affirmed. Attorney-General, Otto, W.
Robert and A. James Special Attorney-General, respond- Assistant Potter, ent.
(1) The information in this case follows
lan-
guage
statute,
and
of
is sufficient. State
Gatlin,
v.
always
(2)
267
797.
The
W.
defendant is
S.
entitled to
requests
a converse instruction when he
it, unless the
equivalent
main
instruction contains
clause
Hayes,
instruction. State v.
247
converse
S.
168;W.
Jackson, 126
521;
State v.
Mo.
State v.
136
Fredericks,
232 Mo.
51;
Harris,
Mo.
State v.
317; State v. Ruther-
Dougherty,
124;
152 Mo.
State v.
Mo.
ford,
82;
287
State
Johnson,
794;
234
v.
234
Cantrell,
v.
S. W.
State
Majors,
(3)
v.
237
488.
S.
The
in-
800; State
W.
main
pretends
struction for
State which
cover
the whole
ordinarily
“feloniously”
include the word,
case should
meaning.
Reagen,
similar
State
Mo.
words of
v.
280
Cummings, 623;
State
State v.
60;
Rader,
v.
Mo.
Massey,
Burgess,
Mo.
274 Mo.
v.
589;
State v.
State
132;
App.
(4)
State
413;
Reed,
Mo.
and
word “moonshine” means
is not broad
liquor.
enough
intoxicating
all
of
to include
kinds
(5) The
267 S. W.
word “moonshine”
Gatlin,
liquor illegally
v. Brown,
manufactured. State
“Comes now County Taney, and for the the State of Mis- within upon upon affidavit of--and his oath of souri, the-day the-court that on or about officeinforms County Taney State of 1925, at and March, Buck aforesaid, Hobbs, one Cardwell and Coonie Missouri Taney County and the State of Mis- both late unlawfully, wilfully feloni- and there then souri, did transport ously, hootch, provided
contrary form of the statute made and to the peace dignity against State.” April Buck defendants, Cardwell and 20, 1925, On *3 granted, severance, asked which was Hobbs, Coonie try to defendant Buck Cardwell the State elected appellant plea entered a Thereafter of not first. this jury, April upon guilty a trial 21, 1925, before and, on following verdict: the the latter returned jury, the Buck defendant Cardwell find “We, pun- the information and in assess Penitentiary.” years in the State at ishment two judgment in trial and arrest of for a new Motions April 1925.' Both motions were over- filed on were day on the same defendant thereafter was ruled, and pro- judgment granted rendered, sentence allocution, granted appeal defendant to this court. an nounced, appellant The brief in this court. evi- no The filed correctly is the substance same short and is dence by follows: State, counsel for stated day alleged information, defendant the On County, Taney traveling in horseback Mis- was seen prosecuting passed by on the witness He was souri. prosecuting noticed that de- highway witness defendant where was asked drunk. He was fendant replied going which Hollister, to going he was and he VoL OCTOBER TERM, Cardwell. Taney. County prosecuting in said also witness jar containing time at the noticed that defendant had a liquor in his the horn of coat, tied to his saddle. Witness proceeded down in the road search of an officerand, after finding the in the road, met at which officer, jar, time defendant was arrested and which at- was by saddle, tached was seized the officerand witness jar liquid found in identified behalf, Defendant that he his own testified not drunk on occasion; he admitted road Hollister the officers him when arrested and took jar nothing away the fruit him; he said about the jar, contents of the other immaterial but denied some statements State’s witnesses. testified to this, ap- No behalf brief has court been filed pellant, respondent called counsel for have attention arising questions in their brief certain the record require which our hands. consideration at I. We are of the that the information here although tofore set out, assailed motion in ar judgment, rest is sufficient as to both form and sub (Mo.) [State stance. Combs, 273 W. l. c. information, 1038-9. State v. Bennett, 270 S. W. 295- (Mo.) (Mo.) 797; Gatlin, Brown, 711.] 78, 262 S. W. l. to the II. No demurrer evidence was offered de the conclusion fendant at conclusion at *4 prosecuting case. The whole attor County Taney ney and testified, constable of that March contradiction, defendant ar was county by in said said resled constable, and sufficient Hat time at the arrest was trans Evidence. jar porting full whiskey of moonshine fruit wrapped the same then and and that was there horse, on a to the back his saddle. The and Ced defend- in a slicker COURT OF ant was sworn testi- behalf, as a witness in his own fied that he did was not arrested, drunk when deny transporting that he as by testified to above other witnesses arrested. when only words, behalf, defendant in own witness signally failed contradict the above witnesses regard in to his said county on the date aforesaid. State therefore made plain out a case on the merits. by given
III. Instruction reads follows: ‘‘ you The court instructs the that if believe and beyond find from the case a reasonable County Taney „ doubt that and State Converse. day on or the 12th of March, of Missouri about the defendant Buck herein, Cardwell, did then unlawfully transport you moonshine, there will defendant find the the information punishment imprisonment at and assess the State years Penitentiary not less than two nor more than years, a fine of five hundred five dollars or county imprisonment jail for a term of not less nor more than twelve months, than three months imprisonment.” fine both such uniformly held, in cases of have We this character, is entitled a converse instruction when requests main unless it, State’s instruction con equivalent to a clause converse tains instruction. [State (Mo.) Hayes, Majors, 168; l. State 247 S. c. v. v. W. (Mo.) 488; State (Mo.) Cantrell, S. W. (Mo.) Johnson, 794; 800; State State v. Dougherty, 82; 287 Mo. State v. Harris, 232 Mo. 317; Rutherford, 124; Mo. v. Fredericks Langon, Jackson, 136 Mo. 521.] theory proceed on the cases
These that a converse part no if ap- instruction pellant subject an instruction on the desires he should *5 145 TEEM, OCTOBEE v. State Cardwell. present give in an court to such one, or ask the respect is anala matter, in to this The law,
struction. gous relating held that to that to an alibi. have We part an where relied it of defendant’s alibi is is a on, part affirmative is no defense. It requested the sub and unless the ject, to instruct on court is failing it to cannot be convicted of error for do so. (Mo.) [State White, v. v. State Brazel, 274; 270 S. c. W. l. Daugherty, (Mo.) 263 638, S. 302 Mo. 195; W. l. c. State v. (Mo.) 259 c. 256 c. 788-9; Carr, l. l. S.W. v. S. State 1042-3; l. 301 Mo. 256 W. c. Parker, ] State Mo. l. Bond, S. W. 832. perceived reading IV. It will he Instruction supra, it does not contain the word Feloniously. "feloniously" import. or words of similar Tipton, grand lar In State c. 517, ceny leading case where all the authorities this State “Upon are we a careful reviewed, collated full cited, consideration of the authorities we have ‘feloniously’ that the reached the conclusion properly word was classify information herein to used necessary incorporate hut it is not offense, ’’ defining same an instruction the crime. pages Laws Act any person provides “If . . that: shall .
242-3, transport whiskey’ ‘hootch,’ ‘corn ‘moonshine,’ felony,”' [he] shall be of a . . etc., “Pro- apply That this section shall not vided: the case of lawfully whiskey' transported manufactured, ’’ sold. contemplate 21 of above law does not required allege prove, that the State shall he appellant feloniously conviction, order to sustain a transported moonshine areWe also of the that if defendant is with ivhiskey, and the evidence sustains Unlawfully charge, unnecessary it is for the require instruction, above find that Sup&emdash;10. 312Mo. OF SUPREME COURT Cardwell. unlawfully transported. other placed burden words, greater *6 21 use of the than word “unlawfully,” Section supra' required. conviction could Broadly speaking, had for unlawfully under transporting- even corn or proving it alleging feloniously transported. proviso, however, should not be construed authorize the transportation “hootch” under any circum- stances.
Y. Instruction 2, given by de- properly presumption fines of innocence and reasonable doubt. JSio complaint is made as to this instruction.
VI. 3, given Instruction the court, by reads as follows:
“Gentlemen, ‘transport’ word as used in the instruction means and includes every mode, m<Uhod and means carrying conveying Moonshine ’ intoxicating from' liquor place to place in any -Definition. or receptacle container of whatsoever kind or character and whatsoever by means used except carrying person. intoxicating liquor “Gentlemen, the word '‘Moonshine’ means in- toxicating liquor unlawfully made.” (Italics ours).
The first of this paragraph instruction is sustained 242, page Laws according State, counsel for the there seems to be some confusion prevalent among the of the judges courts, different as to words, meaning “hootch,” “moonshine,” whiskey,” “corn found in Section 21 of of 1923, at Laws page Brown, S. W. l. Judge White 21 of the Act of (Section
“The statute Laws 1923, pp. 242, makes it a to sell 243) ‘hootch,’ felony ‘’ ’ ‘moonshine, These con- words, not being- OCTOBEE TEEM, 1925. v. Cardwell. conjunctive, or a disjunctive nected must be taken as ‘hootch,’ ‘moonshine,’ and ‘corn synonymous; whiskey’ are the same expressions describing different kind liquor. . . in a context like the
“Legally, ‘moonshine,’ language significance definite a information, has as It term liquor illegally.” ‘whiskey.’ manufactured (Italics ours.) 1. Does as used in Section
Query refer manufactured illegally? solely following,
In State 267 W. Gatlin, information defendant with trans- unlawfully moonshine, whiskey” contrary “hootch, porting 1923. The to the Section 21 Act of provisions prove transported tended to *7 “hootch,” not “moon- but did show it was in conclud- whiskey.” Judge “corn shine,” IIigbee, “In on this case evi-. page ing opinion, contained jars jugs transported dence that is that contained there is no they whiskey; erred in the de- the court whiskey. overruling Hence ours.) murrer the evidence.” (Italics lan- it the intention hold that Was Query Act of 1923 meant 21 of used guage ‘‘ ‘ ’ ‘ ’ ’’ with corn synonymous were and ‘moonshine ‘hootch “moon- and that conviction whiskey,” a verdict transporting- not support shine” would rye whiskey? of Section intended the language 3. Was
Query whiskey,” “moonshine whis- to cover “hootch simply “corn whiskey?” key” and “moonshine” the word the use of Was
Query aside liquors other intoxicating cover intended to whiskey? some kind Combs,
In one-half selling pint with charged He was “moonshine.” selling- found and was con- nor was with selling OF COURT selling judgment victed for same, bnt the below was af- theory selling on the firmed “moonshine” consti- felony under tuted of the Act of 1923. rulings view heretofore we mentioned, Attorney-General think the questing acted with propriety in re- definitely court this to determine what construc- placed upon tion should the words, “hootch,” be “moon- whiskey” shine,”'“corn as set out Section 21 of the especially, law; and, to determine whether “moon- intoxicating liquor shine” unlawfully made, simply or whether Section 21 refers to “moonshine” probable light might It is that some be thrown on subject, by an examination of the House and Senate relating finally Journals Bill to Senate No. which present culminated enactment law, as set out pages following. of 1923, Acts Laws 1923, at 236 and question importance We feel that a presented such vital as that foregoing defining instruction “moon- “any intoxicating liquor unlawfully to mean shine” validity made,” in a should determined case where its presented aas live issue. We are of the undisputed be affirmed, this case should facts in record, whether the definition of “moon- right wrong. shine” be prosecuting attorney
VII. and one of the con Taney County positively, stables in testified the trial at contradiction, that March *8 Proof of highway arrested on the defendant was Moonshine.' county, by constable, said said and that transporting of his arrest fruit at the time whiskey jar on a and that the horse, full of moonshine wrapped slicker, there in a then and tied same was only saddle. The defendant the back of his behalf, testified that he was not own witness indirectly, directly deny or not, did but drunk, transporting’ moonshine as testified that was OCTOBER TERM, 1925. charged above witnesses. He was in the informa- unlawfully transporting tion with whiskey. moonshine The uncontradicted evidence disclosed that he was trans- porting jury kind of him' and the found transporting There information. is nót a word of evidence in the tending case to show that defendant was any intoxicating liquor, except or wine, beer, other moon- whiskey. shine given The definition of “moonshine,” was sufficient to cover moonshine nothing moonshine whiskey was mentioned in evi- right-or dence, the balance of said instruction, whether wrong, ground reversing no remanding affords this cause. Judge 262 Brown, c. White, overruling the State’s contention that defendant was injured by giving
not of an erroneous instruction, jury oral “No evidence is conclusive where the pass upon credibility must of the witnesses.” upon transcript We find examination of the case Brown defendant testified as a witness and squarely testimony contradicted the of the State, while in defendant, this case, the confronted with the when State’s positive evidence, declined contradict the same while explanation testifying own or to make behalf, transportation possession toas of regardless accordingly that, We hold of the invalidity validity of the definition undisputed “moonshine,” the in view defendant, of the positive facts and his failure to controvert the against position upon in no him, insist a reversal cause, based on the definition of right wrong. whether aforesaid, Upon a careful consideration of all the facts dis- rulings closed in this find no we adverse trial reversing court which would warrant us remand- ing might here, the cause. It cannot be said they have believed did witnesses, be- *9 SUPREME COURT OF MISSOURI, Light Thomassen v. Water & Co.
lieve as them, shown the record, a and returned ver- dict of for conviction nothing else. judgment right party, below was for the
accordingly Iiigbee, affirmed. G., concurs. opinion PER CURIAM: The of Railey, adopted
C., is as of the court. All of judges concur; White, J., the result.
HORTENSE THOMASSEN v. WEST ST. LOUIS Appellants.
WATER al., & LIGHT COMPANY et Two, Division December Independent Employer. Liability 1. NEGLIGENCE: Contractor: independent who, exercising An contractor an inde- is one pendent employment, contracts to a certain work accord- do ing methods, being subject his to own and without to employer except control of his to result of his work. who, rendering He is one of an oc- service course represents employer cupation, only will of his as to work, result his to the means which it is accom- plished. independent contractor, To constitute an so as relieve to ap- employer liability negligence, for his performed it must at least exclusively pear to was committed the work person alleged And whether a an discretion. or not to be independent question is such is contractor case of doubt to determine. n - — : Question Jury. -: —:-: The defendant water and' homes, employed light company laborers at a distance from their convey wages, agreed and, their had them to addition morning place work. man carried On a certain from their work, place and in the to their afternoon some the laborers company’s telephoned that his foreman automobile was broken. exigencies the foreman had taken on former occasions In similar and received dol- their homes in truck three the workmen to company trip, this was in accordance for each lars from manager company. understanding with the Pursuant with an evening understanding said took some the'foreman on to this journey negligent- truck, in his homes their Workmen