289 S.W. 568 | Mo. | 1926
Defendant was convicted of giving away moonshine whiskey, in violation of Section 21 of Laws of 1923, page 242; was sentenced to imprisonment in the penitentiary for two years, and has appealed.
The defendant offered no testimony. The evidence offered on the part of the State tends to show that on or about July 25, 1923, one Carpenter drove his horse and buggy to a field on a farm in Marion County, where defendant and others were baling hay, and that defendant took a bottle from Carpenter's buggy and drank from it, put it between two bales of hay and afterwards passed the bottle around among some of his co-workers and gave them a drink out of the bottle. There was evidence tending to show that the liquor contained in the bottle was whiskey. There was no evidence that such liquor was moonshine whiskey or other illegally manufactured whiskey, the giving away of which is denounced as a felony by said 1923 Act. The only mention of the term "moonshine whiskey" in the entire testimony is in a question to which the trial court sustained an objection, and the proof was not afterwards tendered in any other manner. At another place in the record it appears that one of the persons who drank some of the liquor said at the time he drank it that it was as good as bottled-in-bond whiskey. Even if such recommendation of the liquor had been given in testimony by a witness at the trial, the fact that the whiskey was as good as bottled-in-bond whiskey would not prove that it was not such bonded whiskey or that it was illegally manufactured.
The indictment charged that the defendant gave away moonshine whiskey. It was necessary for the State to prove that the liquor was moonshine whiskey.
In State v. Gatlin, 267 S.W. l.c. 799, we said: "The statute on which this prosecution is based declares the transportation of `hootch,' `moonshine,' `corn whiskey,' to be a felony. In this case the evidence is that the jugs and jars transported contained whiskey; there *243 is no evidence that they contained corn whiskey. Hence the court erred in overruling the demurrer to the evidence."
The trial court should not have submitted the case to the jury under the indictment found and the proof made. This necessitates the granting of a new trial.
Defendant asked and the court refused to give the following instruction:
"The court instructs you that before you can convict the defendant you must find and believe from the evidence and beyond a reasonable doubt that the bottle and its contents, mentioned in evidence, was the property of defendant Stratton."
The contention is that one cannot give away anything to which he has no title. We are not impressed with this contention and find it to be without merit. The cases cited by defendant are civil cases dealing with gifts of property to which title can legally be held. Intoxicating liquor unlawfully manufactured is contraband. [Sec. 6601, R.S. 1919.] No one can have title to such liquor. Hence, title to such liquor cannot be transferred either by sale or gift. To require the State to show that one selling or giving away moonshine or other unlawfully manufactured whiskey was the owner of such liquor would be to open wide the door to perjury and make a farce of Section 21, Laws 1923, page 242, and other sections of the prohibition law. It is wholly immaterial who claims to own such liquor. It is the act of delivering such unlawfully manufactured whiskey to another gratuitously which constitutes a gift of such liquor within the meaning of said section.
Other questions are suggested by the brief, but they are of such character that they will not likely recur upon another trial and need not now be considered.
The judgment is reversed and the cause remanded. All concur.
