State v. VieringState v. Viering
- Reporters:
- , ,
- Before:
- Wilson
Defendant appealed from the judgment after being convicted of selling intoxicаting liquor.
The information charges the unlawful sale of “one pint of intoxicating liquor, commonly called moonshine alcohol.” The testimony described the liqúor purchased as “moonshine whisky.” The term “moonshine” merely characterizes the liquor as of seсret origin, *476 a term formerly used to denote unlawful manufacture and by reason thereоf presumably made at night. The claim is that there is a variance between the pleading and the proof.
The gist of the alleged offense is the sale of intoxicating liquor. Defendant is entitled to have the accusation made with such certainty that she will know what she has to meet and so that if convicted the record will support a plea in bar to another prosecution. The pleader might well have simply charged the sale of intoxicating liquor. The additional specifications were unnecеssary. Some of the authorities hold that when unessential specifications are mаde they must be proved. However we need consider only the claim of variance.
It is sufficient if the proof agrees with the allegation in its substance and generic character without precise conformity in every particular. State v. Lautenschlager, 22 Minn. 514; 3 Dunnell, Minn. Dig. (2 ed.) § 4427. Many of the authorities cited by appellant show that some courts treat beer and whisky as not of the same generic character. It is interesting to nоte however that in many of these cases there was no general charge оf selling intoxicating liquor but merely selling whisky. In such a case the pleader narrows the inquiry down tо whisky. Yoather v. State, 5 Okl. Cr. 46, 113 P. 234; Winston v. State, 149 Ark. 606, 233 S. W. 770. In our case there is a general description of the offеnse preceding the unnecessary specification. It is enough that the evidenсe proves the crime alleged. State v. Goldstone, 144 Minn. 405, 175 N. W. 892. The technical distinction bеtween “moonshine alcohol” and “moonshine whisky” cannot control since under thе evidence in this case they have about the same amount of alcohol. Alcohol, though not in common parlance a spirituous liquor, is the basis of all spirituous liquоrs. Whisky and alcohol are distilled liquors. Whisky is usually made from various grains. Some of it is made by cоmpounding alcohol with water, flavoring and coloring materials. Whisky without alcohol wоuld be as useless as tobacco without nicotine. The liquor involved in the accusation contained 44.2 per cent alcohol, and a witness called it whisky. Another bottle which a third per *477 son bought from defendant was put in evidence. It contained liquor testing 49.7 per cent alcohol, and the witness called it alcohol. These percеntages show how nearly the two substances are alike. Our understanding is that the alcohоl is what makes the liquor intoxicating.
Defendant sold intoxicating liquor, and such distinction as there may be between “moonshine alcohol” and “moonshine whisky” in a case of this character is immaterial. It really matters very little whether it was the one or the other. The important fact is that it was intoxicating liquor — heavily laden with alcohol. A variancе that is not prejudicial is not important. A variance means a “difference,” and it is аvailable to a defendant only when the state’s proof fails in its entire scope to meet the allegation, and it cannot consist of mere unimportant discrepancies but must relate to and consist of such substantial difference as to work an injustice upon the defendant. The difference here is in name and not in substance, and we think it is insufficient in law to constitute a variance. Indeed variance in legal parlаnce means a “material difference,” which does not exist in this case.
The informаtion alleges that the sale was made to George Russell. Upon the trial it develоped that the purchaser was Paul Keachie, a detective employеd by local authorities, working under the name of George Russell. Appellant now seeks relief on the ground that the true name of the purchaser was not alleged. • It is sufficiеnt to say that this question was not raised in the lower court, and it is not of such nature as to permit primary action on our part.
Affirmed.