Opinion
February 17, 1932.
1. INFORMATION: Moonshine: Transportation. An information charging that defendant on a named date, at and in a named county, "did then and there wilfully and unlawfully and feloniously transport hootch, moonshine, corn whiskey, contrary to the form of the statute made and provided and against the peace and dignity of the State," follows the language of the statute and covers all the essential elements of the offense, and is sufficient.
2. SEARCH: Of Automobile: After Arrest: Without Warrant: Transportation of Moonshine. Testimony by the sheriff that he had seen the defendant in the town on two occasions; that he had been reliably informed that defendant had been stopping his automobile in an alley behind a barber shop and peddling whiskey in the town; that about four o'clock in the afternoon he was informed by a reliable business man of the town that the defendant would be in the alley behind the barber shop about 8:30 o'clock in the evening and would have whiskey in his possession; that he stationed himself in a shed close to the alley, and about said hour the defendant appeared in the alley in his automobile, and that he recognized defendant as soon as he stepped out, authorized the sheriff to believe that defendant was committing the felony of transporting moonshine, and to arrest him without a warrant, and, as incident to the arrest, to search the automobile without a search warrant and to seize the liquor found therein.
3. SUFFICIENT EVIDENCE: Character of Liquor: Transportation. Evidence showing that the liquor found in the automobile was hootch or moonshine; that the defendant drove the automobile to the place where he was arrested, and that he had the keys to the automobile and he alone was directing its movements, is sufficient to sustain a conviction of felonious transportation.
4. ____: ____: Moonshine: Felony. Any person who transports hootch or moonshine is guilty of a felony.
5. ____: ____: ____: Content. Under the statute hootch and moonshine are intoxicating liquors, and courts of this State take judicial notice of the fact that they are potable and capable of being used as beverages.
6. ____: Moonshine: Transportation: Direction: Starting Point. To sustain a charge of felonious transportation of moonshine, it is not necessary for the State to show the place from which defendant transported the liquor, nor the route or distance he traveled while the liquor was being transported.
Appeal from Lincoln Circuit Court. — Hon. Charles T. Hays, Special Judge.
AFFIRMED.
Chas. W. Graves for appellant.
(1) The court erred in overruling defendant's motion to suppress the testimony, in that the defendant was arrested and charged by an improper arrest, search and seizure, both of his person and the automobile, and that the evidence so unlawfully obtained should have been suppressed. Tenpenny v. State (Tenn.), 270 S.W. 989; State v. Randolph (Mo.), 34 S.W.2d 55; State v. Bennett, 18 S.W.2d 52; State v. Dunivan, 269 S.W. 415; Best v. Commonwealth, 268 S.W. (Ky.) 1089; Miles v. State, 235 Pac. (Okla.) 260; Bolt v. United States, 2 F.2d 922; State v. Ridge, 275 S.W. 60; State v. Eklof, 11 S.W.2d 1033. (2) The court erred in overruling defendant's motion to quash the information on the grounds that the charge was improperly pleaded in the disjunctive, when it should have been in the conjunctive and was not sufficient to apprise defendant so as to properly prepare defense. State v. Grossman, 214 Mo. 242; State v. Wyatt, 245 S.W. 583; State v. King, 285 S.W. 794; State v. Bilyen, 295 S.W. 195; State v. Harvey, 127 Atl. (Me.) 275. (3) The court erred in overruling defendant's objection to the introduction of any testimony on part of the State. (4) There was a total failure of proof that the alleged "hootch or moonshine" contained more than one-half of one per cent alcohol by volume, that it was intoxicating, or that it could be used for beverage purposes. State v. Pinto, 279 S.W. 148; State v. Gurlin, 267 S.W. 899. (5) There was no proof that the areaway or alley where defendant was placed under arrest was an open or public highway or that defendant had or was transporting intoxicating liquor over or upon a public highway, or from any designated place to another. State v. Kurtz, 295 S.W. 747; State v. Harvey, 127 Atl. (Me.) 275. (6) The court erred in permitting testimony that some undisclosed person informed the witness that defendant was transporting liquor. State v. Miller, 266 S.W. 1024; Bolt v. United States, 2 F.2d 922.
Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.
(1) The information charging transportation of "hootch, moonshine, corn whiskey" is in proper form and has been approved. State v. Howard, 23 S.W.2d 13. (2) The motion to suppress the evidence as well as the motion to quash the information are not before this court for review. Motions of this kind are matters of exceptions and must be preserved in the bill of exceptions and not the record proper. State v. Harrison, 292 S.W. 416; State v. Ball, 14 S.W.2d 643; State v. Marshall, 317 Mo. 418; State v. Caldwell, 22 S.W.2d 794; State v. Forshee, 308 Mo. 661; State v. Hembree, 37 S.W.2d 449. (3) It is not necessary to prove the alcoholic content of "hootch, moonshine or corn whiskey." The transportation of any of these is a felony and the court will take judicial notice that they are intoxicating and used as a beverage. State v. Mitts, 289 S.W. 937; State v. Hedrick, 296 S.W. 153; State v. Martin, 292 S.W. 40. (4) It is not required that transportation of liquor must be on a public highway. Sec. 4523, R.S. 1929. (5) It was proper for the sheriff to refuse the source of information upon which he had arrested the appellant. He had reason to believe a felony was being committed, and in that event the search was incident to the arrest. State v. Bailey, 8 S.W.2d 59; State v. Harlow, 37 S.W.2d 420; State v. Williams, 14 S.W.2d 435; State v. McNeece, 295 S.W. 738.
The defendant appealed from a judgment of the Circuit Court of Lincoln County, where he was charged with the unlawful transportation of "hootch, moonshine, corn whiskey," found guilty, and sentenced to imprisonment in the penitentiary for two and one-half years. The case was tried before Honorable Charles T. Hays, judge of the Tenth Judicial Circuit, as special judge, the regular judge of the Circuit Court of Lincoln County having been disqualified.
The sheriff of Lincoln County and one of his deputies were the chief witnesses for the State. From their testimony, we gather the following:
About 8:30 o'clock Saturday evening, January 31, 1931, the sheriff and his deputy were stationed in a shed adjoining an alley in the town of Troy, in Lincoln County, watching for the defendant, and, through a window in the shed, saw the defendant drive a Buick coupe automobile "up" to the mouth of the alley, stop the automobile, get out of the automobile, and walk "up" the alley toward the rear entrance of a barber shop. The sheriff stepped out of the shed into the alley with his revolver in his hand, and arrested the defendant, a minute or two later, as he was returning from the barber shop to the automobile. The sheriff then fired one shot with his revolver as a signal to his deputy to come out of the shed and search the automobile. The doors and the rear compartment of the automobile were locked, and when the sheriff demanded the keys to the automobile, the defendant said he did not own the automobile or have the keys to the automobile in his possession. The deputy started to search the defendant, and the defendant handed the keys to him. The deputy unlocked the automobile, and found, on the seat and in the rear compartment, thirty-six short quart bottles of liquor, labeled "Gordon Dry Gin," three short quart bottles of liquor, labeled "Apricot Brandy," and ten short pints of liquor, labeled "Old Smugler Whiskey." The liquor was taken from the automobile and kept in the custody of the sheriff until the day of the trial.
The sheriff further testified that he had examined one bottle of the so-called gin, one bottle of the so-called brandy, and one bottle of the so-called whiskey, by smelling and tasting the contents of said bottles; that the liquor contained in each of said bottles was "hootch, moonshine;" that "hootch and moonshine are the same thing;" and that he had previously examined intoxicating liquors on numerous occasions, in the discharge of his duties as sheriff.
All of the liquor found in the automobile was produced at the trial, admitted in evidence, and exhibited before the jury, in connection with the sheriff's testimony.
No evidence was offered on behalf of the defendant.
I. The sufficiency of the information was challenged by a motion to quash, and it is now contended that the Information. trial court erred in overruling the motion.
It is charged in the information "that William Davis, on the 31st day of January, 1931, at and in the County of Lincoln and State of Missouri, did then and there willfully and unlawfully and feloniously transport hootch, moonshine, corn whiskey, contrary to the form of the statute made and provided and against the peace and dignity of the State." The information follows the language of the statute and covers all essential elements of the offense sought to be charged. [Sec. 4500, R.S. 1929.] It is sufficient. Similar informations have been approved by this court in numerous cases. [State v. Howard, 324 Mo. 145, 23 S.W.2d 11; State v. McGinnis, 320 Mo. 228, 7 S.W.2d 259; State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777.] The motion to quash the information was properly overruled.
II. The defendant also complains of the action of the trial court in overruling his motion to suppress the State's evidence, by which he challenged the legality of the search of the Search: automobile and the seizure of the liquor found therein. After Arrest.
The sheriff and his deputy were the only witnesses offered in support of the motion, and their testimony in that connection was substantially the same as the testimony given by them at the trial of the case, as to the arrest of the defendant, the search of the automobile and the seizure of the liquor found in the automobile. But, in connection with the motion, the sheriff further testified that he had seen the defendant in Troy on two occasions prior to the occasion in question; that he was reliably informed that the defendant had been stopping his car in the alley behind the barber shop and peddling whiskey in Troy; that, about four o'clock in the afternoon of January 31, 1931, he was informed by a reliable business man of Troy that the defendant would be in the alley behind the barber shop about 8:30 o'clock that night and would have whiskey in his possession; and that he recognized the defendant as soon as he stepped out of the automobile at the mouth of the alley that night. Under such circumstances, the sheriff had reasonable grounds to believe that the defendant was committing a felony; and, so believing, the sheriff was authorized to arrest the defendant without a warrant, and, as incidents to the arrest, to search the automobile without a search warrant and to seize the liquor found therein. [State v. Harlow (Mo. Sup.), 327 Mo. 231, 37 S.W.2d 419; State v. Howard, supra; State v. Williams (Mo. Sup.), 14 S.W.2d 434; State v. Bailey, 320 Mo. 271, 8 S.W.2d 57.] The motion to suppress the State's evidence was properly overruled.
III. It is further contended that the evidence is insufficient as to the character of the liquor found in the Sufficient automobile and as to the transportation of the Evidence. liquor, and that, for these reasons, the demurrer to the evidence should have been sustained.
The evidence shows that the liquor found in the automobile was hootch or moonshine. Section 4500, Revised Statutes 1929, says that any person who transports hootch or moonshine shall be guilty of a felony, and the language of this section amounts to a statutory finding that hootch and moonshine are intoxicating liquors, as the prohibition act, of which this section is a part, relates solely to intoxicating liquors. [State v. Mitts, 315 Mo. 1320, 289 S.W. 935; State v. Martin (Mo. Sup.), 292 S.W. 39.] It is a matter of common knowledge that hootch and moonshine are potable or capable of being used as beverages, and the courts of this State will take judicial notice of that fact. [Sec. 4496, R.S. 1929; State v. Hedrick (Mo. Sup.), 296 S.W. 152.] The evidence also shows that the defendant drove the automobile, in which the liquor was found, into an alley in Troy; that he had the keys to the automobile in his possession; and that he alone was directing the movements of the automobile. It was not necessary for the State to show the place from which he transported the liquor; nor was it necessary for the State to show the route or distance traveled by the automobile while the liquor was being transported therein. Section 4523, Revised Statutes 1929, says: "The words `transport' and `transportation' as used in any part of this chapter, shall be held to mean and include every mode, method, or means of carrying, or conveying, intoxicating liquor from place to place in any container, or receptacle, of whatsoever kind or character, and by whatsoever means used, except carrying intoxicating liquor on person." (Our italics.) The evidence is amply sufficient in every particular to support the verdict. [State v. Harlow, supra, and cases cited.] It follows that the demurrer to the evidence was properly overruled.
This disposes of all questions presented for our consideration. We find no error in the record proper or in the other proceedings of which the defendant complains.
The judgment is affirmed. All concur.