Opinion
December 11, 1929.
1. INFORMATION: Feloniously. If the information charges that certain acts were done, which of themselves constitute a felony, it is not necessary to allege that they were done feloniously. But if the acts do not in themselves describe a felony, then it is necessary that the information allege that they were done feloniously.
2. ____: ____: Distinction in Instruction. There is no valid reason for the distinction that an instruction need not require the jury to find that certain acts which constitute a felony were done feloniously or with a felonious intent, and that an information or indictment must charge that the same acts were feloniously done.
3. ____: _____: In Language of Statute: Selling Liquor. Section 21 of the Act of 1923 makes the act of selling intoxicating liquor a felony, regardless of the purpose or manner of the act, and an information in the exact language of that section is sufficient, though it does not state that the act of selling was done feloniously.
4. _____: Negativing Statutory Exception. The proviso in Section 21 of the Act of 1923, making an exception in favor of corn whiskey lawfully manufactured, transported or sold, is a separate and distinct sentence, disconnected from the part describing the offense, and it is therefore unnecessary to negative that exception in the information.
Appeal from Gentry Circuit Court. — Hon. John M. Dawson, Judge.
AFFIRMED.
C.E. Ernst for appellant.
(1) The information is insufficient in form and substance to charge any offense under the laws of the State. It fails to charge that the act complained of was unlawfully or feloniously committed. Sec. 3812, R.S. 1919. It charges a felony and fails to charge that the act was "feloniously" committed. Sec. 21, Laws 1923, p. 243; State v. Bennett, 248 S.W. 924; State v. Siegel, 265 Mo. 239. The statute upon which the information is based describes an offense for which the defendant, upon conviction, may be punished by imprisonment in the penitentiary. The employment of the word "feloniously" is required to properly charge an offense of this character. State v. Muir, 186 S.W. 1047; State v. Siegel, 265 Mo. 239. The information must fully inform the defendant of the offense of which he stands charged. Sec. 22, Art. II, Constitution of Missouri; Sec. 3908, R.S. 1919; State v. Evans, 128 Mo. 406; State v. Zinger, 302 Mo. 650. The sufficiency of an information may be raised for the first time on appeal. State v. Henschel, 250 Mo. 263. (2) The court erred in overruling defendant's motion to quash the information. State v. Weeks, 77 Mo. 496; State v. Siegel, 265 Mo. 239.
Stratton Shartel, Attorney-General, and A.M. Meyer, Assistant Attorney-General, for respondent.
(1) A charge of felony must contain an allegation that the act charged was "feloniously" done, under the following cases: Jane v. State, 3 Mo. 61; State v. Murdock, 9 Mo. 739; State v. Gilbert, 24 Mo. 380; State v. Deffenbacher, 51 Mo. 26; State v. Clayton, 100 Mo. 516; State v. Hang Tong, 115 Mo. 389; State v. Feazell, 132 Mo. 176; State v. Willard, 219 Mo. 721; State v. Muir, 186 S.W. 1047; State v. McGrath, 228 Mo. 422; State v. Siegel, 265 Mo. 239; State v. Baird, 271 Mo. 13; State v. Hodges, 234 S.W. 790; State v. Bennett, 297 Mo. 190. But see obiter dicta in State v. Cardwell, 312 Mo. 145. The dicta in the Cardwell case were evidently intended to refer only to the effect of the proviso in Section 21 of the 1923 Liquor Act. See opinion in State v. Bennett, 297 Mo. 190. (2) Many technicalities appear to be superfluous, but so long as we retain the distinction between misdemeanors and felonies and the incidents of the two grades of crimes, it seems that the essential record should show upon its face the grade of the crime of which appellant stands convicted.
Information was filed in the Circuit Court of Gentry County on June 21, 1928, charging that the defendant did sell and give away hootch, moonshine and corn whiskey. On the trial, September 25, 1928, a jury found him guilty, and assessed his punishment at five hundred dollars and imprisonment in the county jail for six months. From the judgment following he appealed in due form.
I. The principal point upon which the appellant seeks the reversal is that the information fails to state any Information. offense under the statute. It is as follows:
"George P. Adams, Prosecuting Attorney within and for Gentry County, in the State of Missouri, on his oath of office informs the Court that Charles Burton on or about the 13th day of May A.D. 1928, at the said County of Gentry and State of Missouri, did sell and give away, intoxicating liquor, to-wit: `hootch,' `moonshine' and `corn whiskey,' contrary to the form of the Statute in such cases and provided against the peace and dignity of the State.
"GEORGE P. ADAMS, "Prosecuting Attorney within and for Gentry County, Missouri."
The precise point made by the appellant is that the information fails to state that the act of selling or giving away intoxicating liquor was done "feloniously." Feloniously.
The authorities are in conflict as to whether in charging a crime the indictment or information should state that the act was accomplished feloniously. [31 C.J. 699-703.] The weight of the better reasoned authority seems to be this: If the information or indictment charges that certain acts are done, which of themselves constitute a felony, it is not necessary to allege that the acts were done feloniously. But, if the acts do not in themselves describe a felony, then it is necessary to say that they were done feloniously. In leading cases in this State it has been held that in any event the charge must state that the act complained of was done feloniously. [State v. McGrath, 228 Mo. l.c. 422; State v. Siegel, 265 Mo. l.c. 245.]
The rule, however, is that an instruction which requires a finding of the facts necessary to constitute the crime charged need not say that the jury must find the acts were done feloniously or with a felonious intent. [State v. Rader, 262 Mo. l.c. 134; State v. Tipton, 307 Mo. l.c. 514, 515.] There is no valid reason for such a distinction. If an instruction is sufficient without the use of the word "felonious" or "feloniously" where it requires a finding that certain acts, which constitute a felony, were done, why may not the word "felonious" or "feloniously" be omitted in any information in like case?
We have consistently ruled in cases involving the violation of the intoxicating liquor statutes, that an information in the language of the statute is sufficient. [State v. Fenley, 309 Mo. 534; State v. Knight, 300 S.W. 719; State v. McGinnis, 7 S.W.2d 259.] The information in this case is in the exact language of Section 21 of the Act of 1923. No such word as feloniously, unlawfully or knowingly is used in the section. The act of selling is made a felony regardless of the purpose or manner of the act. In the legislative mind, as shown in this section, the felonious intent is implied in the conscious performance of the unlawful act. The statute condemns the act, though defendant may have thought his act harmless or lawful.
II. The proviso in Section 21 of the Act of 1923 makes an exception in favor of corn whiskey lawfully manufactured, transported or sold. The proviso is a separate and distinct sentence, disconnected from the part describing the Negativing offense. It was therefore not necessary to negative Exception. that exception in the information. [State v. Williams, 296 S.W. l.c. 156.]
The judgment is affirmed. All concur; Walker, J., in result.