Opinion
December 11, 1929.
1. SEARCH: Without Warrant. If the officer has reason to believe that the driver of an automobile is transporting moonshine whiskey therein, he has a right to arrest him without a search or other warrant.
2. ____: ____: Probable Cause. The information upon which an officer may arrest one suspected of committing a felony is an entirely different thing from the probable cause necessary to be shown as the basis for the issuance of a search warrant.
3. TRANSPORTATION: Sufficient Evidence. The carrying in an automobile of a five-gallon jug containing moonshine, which is fifty-four per cent alcohol, intoxicating, potable and fit for beverage purposes, is sufficient to sustain a charge of transporting "hootch, moonshine."
4. MOONSHINE: Proof: Qualified Witness. An officer, qualified by experience in enforcing the prohibition law to distinguish moonshine whiskey from bonded whiskey by the taste and smell, or a witness qualified by chemical education to judge the quality and kind of whiskey, is qualified as an expert to testify that the liquor found in the five-gallon jug transported by defendant was moonshine.
5. REPUTATION: Impeachment: Rumors. In the cross-examination of defendant's character witnesses it is permissible to inquire of them if they have heard rumors of crimes and other delinquencies committed by the person for whose character they vouch, as a test of the credibility and good faith of such witnesses.
6. INSTRUCTION: Hootch, Moonshine or Corn Whiskey. Where the information charges that the defendant transported "hootch, moonshine, corn whiskey," an instruction authorizing the jury to convict if they find he unlawfully and feloniously transported "hootch or moonshine" is not error. The accused is guilty if he transported a liquor that may be described by any one of these terms.
7. ____: Moonshine: Definition. Where one instruction told the jury that, in order to convict defendant, they must find that he unlawfully transported hootch or moonshine, another instruction defining hootch and moonshine as "any intoxicating liquor illegally distilled for beverage purposes regardless of the materials from which same may be distilled" does not incorrectly define hootch and moonshine, though the definition is incomplete and an unhappy one, since the word "distilled" does not apply to home brew or wine. But since a definition of home brew or wine had no place in the case, and the instruction further correctly defined "intoxicating liquor," and did not authorize a verdict, it should be regarded as simply an attempt to classify such liquors, and cannot be held to have misled or confused a jury of average intelligence.
8. ____: Must Be Based on Evidence: Refusal. Where there is no evidence upon which to base a requested instruction it is not error to refuse it. An instruction to the effect that defendant cannot be convicted unless the jury find beyond a reasonable doubt that "the said liquid in evidence is hootch, moonshine, corn whiskey" is properly refused where there is evidence that the liquor transported was moonshine, and none at all that any other kind of liquor was transported.
9. INSTRUCTION: Refusal: Definition: Covered by Instruction for State. It is not error to refuse an instruction asked by defendant defining hootch, moonshine and corn whiskey as "illegally manufactured whiskey," where the instruction given for the State gives, in effect, the same definition, but more completely and clearly.
Appeal from Marion Circuit Court. — Hon. Charles T. Hays, Judge.
AFFIRMED.
E.W. Nelson and J.H. Whitecotton for appellant.
(1) The officer must have such information as will create in his mind a reasonable suspicion that the defendant was committing a felony, and as the officer in this case had no such information, as shown by the testimony, the motion to suppress should have been sustained. State v. Evans, 161 Mo. 95; State v. Cushenberry, 157 Mo. 168; State v. Bailey, 8 S.W.2d 57. (2) When testimony can be had by competent experts the testimony of non-expert witnesses should not be admitted. State v. Farley, 144 Mo. 600; 7 Am. Eng. Ency. Law 493. (3) The error committed by the court in permitting witnesses to testify as to rumors concerning the defendant was not cured by the court instructing the jury that the testimony by the witness as to rumors is expressly held to be improper and wholly incompetent for any purpose whatever. The admission of testimony on cross-examination of the defendant's character witnesses was extremely prejudicial and in direct violation of the law. State v. Seay, 282 Mo. 672. (4) The court should have given the instructions directing the jury to find the defendant not guilty, there being no substantial and competent testimony tending to show that the jugs contained "hootch," "moonshine" "corn whiskey." (5) Instruction marked "A" should under all the evidence not have been given. It should have included knowledge of the contents of the jugs or containers. It is further defective and erroneous in using the terms "hootch" or "moonshine," thereby making the instruction broader than the information, said terms not being synonymous when not used as set out and used in the statute, "hootch, moonshine, corn whiskey." (6) The giving of the instruction marked "B" by the court is manifest error, as it warrants the conviction of the defendant of a felony if the liquor was intoxicating liquor, containing one-half of one per cent or more of alcohol, by volume, and capable of being used for beverage purposes. State v. Brown, 262 S.W. 710; State v. Brown, 285 S.W. 995; State v. Caldwell, 312 Mo. 140. (7) The court should have given Instruction 3 as asked by the defendant. This instruction properly submitted the issue and offense charged in the information. This instruction is based on the information and properly declared the law. State v. Sessom, 278 S.W. 704; State v. Gotlin, 267 S.W. 797. (8) Instruction 5 asked by the defendant should have been given. It was refused by the court for the reason it was sufficiently covered by an instruction given at the request of the State. (9) Instruction 6, as asked by the defendant, is the converse of what should have been given on the part of the State and is a proper and necessary instruction on behalf of the defendant. State v. Gotlin, 267 S.W. 797.
Stratton Shartel, Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.
(1) The appellant alleges that the court erred in refusing to give an instruction in the nature of a demurrer at the close of all the evidence. There was substantial evidence to the effect that the defendant is guilty of the crime charged in the information. State v. Scheufler, 285 S.W. 421. (2) The appellant complains that the court erred in overruling defendant's motion to suppress certain evidence. It is claimed that the officer had no right to arrest the defendant without a warrant; that he had no right to take possession of the intoxicating liquor without a search warrant. He had the right without a warrant to arrest the defendant and take charge of the liquor. State v. Padgett, 289 S.W. 956. The officer had the right to rely on his sense of smell in making the arrest. State v. Rhodes, 292 S.W. 79. The court did not commit error in overruling defendant's motion to suppress evidence. State v. Bailey, 8 S.W.2d 57. (3) It has always been held that in testifying about intoxicating liquor, witnesses may be experts either by chemical education or by experience. State v. Kroeger, 13 S.W.2d 1071; 33 C.J. 773; State v. Bliss, 18 S.W.2d 510. (4) Appellant charges that the court erred in permitting the prosecuting attorney to cross-examine character witnesses of defendant by asking them if they had heard certain things charged against the defendant. The cross-examination was a proper one. (5) Appellant's objections to the instructions seem to be that because the information charges that defendant transported "hootch, moonshine, corn whiskey" and the instructions refer only to "hootch" or "moonshine," a fatal error has been committed. Under this information proof may be made that the defendant transported "hootch," "moonshine" or "corn whiskey." It is not necessary, in order to make a case, to prove the transportation of "hootch," "moonshine" and "corn whiskey." State v. Pinto, 279 S.W. 147. It is therefore proper for the instruction to be limited to "hootch" or "moonshine." State v. Wood, 11 S.W.2d 1042. (6) Appellant contends that because of this Instruction B the jury was authorized to convict upon proof that appellant transported any kind of intoxicating liquor other than "hootch moonshine." This instruction is, of course, to be construed with instruction A. State v. Arnett, 210 S.W. 83. Instruction A told the jury to convict if they found from the evidence that the defendant transported "hootch" or "moonshine." Instruction B properly defines "hootch" "moonshine." State v. Wood, 11 S.W.2d 1042. (7) The definition of "transportation" is limited to "hootch" "moonshine," because the testimony shows that the defendant transported "hootch" or "moonshine."
The appeal is from a sentence, February 14, 1924, of two years in the penitentiary upon conviction of defendant for transporting "hootch, moonshine."
Defendant lived in Moberly, in rooms over a soft-drink parlor known as the Green Tree. On December 2, 1927, McAdam, a police officer, saw a car driven along the alley and stopped near the back door of the Green Tree. A man named Warford came out of the back door of the building, got a jug from the car and put it inside the door of the Green Tree. The officer approached the car, smelled liquor, and saw a five-gallon jug in the car. The defendant was at the wheel. He arrested the defendant, got in the car, and drove to the police station. The jug contained moonshine, which was fifty-four per cent alcohol, intoxicating, potable and fit for beverage purposes. Upon this evidence the defendant was found guilty by the jury.
I. The defendant first filed a motion to suppress the evidence on the ground that the liquor was discovered in his car Search: by an unreasonable search; that the officer had no Arrest. warrant to search or to arrest the defendant at the time.
The evidence shows without contradiction that the officer arrested the defendant and took him to the police station at the time he discovered the five-gallon jug in the car. There was no search other than an observation of the jug. The officer had reason to believe that the defendant was committing a felony. He had received information that liquor was being sold at the Green Tree. It had that reputation. He saw the car stop there and saw a jug carried in. He smelled the liquor. He therefore had reason to believe that the defendant was transporting liquor, or committing a felony, and he had a right to arrest him without a warrant, and to search him and the car as incident to such arrest. [State v. Williams, 14 S.W.2d 434; State v. Bailey, 8 S.W.2d l.c. 59, and cases cited.] The information upon which an officer may arrest one suspected of committing a felony is an entirely different thing from the probable cause, which must be shown by the issuance of a search warrant, as we have heretofore pointed out. (Id.) The motion to suppress was therefore properly overruled.
II. It is further claimed that the court erred in overruling the defendant's demurrer to the evidence at the close Sufficient of the case. The evidence mentioned above was Evidence. entirely sufficient to submit the issue of transportation to the jury.
III. It is further claimed by the appellant that the court erred in permitting Officer McAdam and other officers to testify that the contents of the jug found in defendant's car Qualified was moonshine. We have held consistently that a Witness. witness, qualified to judge the quality and kind of unlawful liquor, may be an expert by chemical education or by experience; that sheriffs and other officers, who have had experience in enforcing the prohibition law, may testify as to the kind of liquor which they discover. [State v. Kroeger, 13 S.W.2d l.c. 1071; State v. Bliss, 18 S.W.2d l.c. 510; 33 C.J. 773.] In this case, as an illustration, one Lawrence Daily, an officer, testified that he could distinguish moonshine whiskey from bonded whiskey by the taste and smell. He had had experience for four years in connection with prohibition enforcement.
IV. On cross-examination of defendant's character witnesses, they were asked if they had heard rumors of offenses committed by the witness whose character was attacked. This was Reputation: objected to and exception saved. It is permissible Rumors. in the cross-examination of character witnesses to inquire whether they had heard rumors of crimes and other delinquencies regarding the person for whose character he vouches. Such questions are permissible to test the credibility and the good faith of the character witnesses. [State v. Parker, 12 S.W.2d l.c. 431.]
V. Error is assigned to the giving by the court of Instruction A, for the State, which authorized a conviction if the jury found that the defendant unlawfully and feloniously Hootch, Moonshine transported hootch or moonshine, whereas the or Corn Whiskey. charge was transporting hootch, moonshine, corn whiskey. This court's interpretation of the words of the statute, "hootch, moonshine, corn whiskey," has interpolated the word "or" between "hootch, moonshine, corn whiskey," so that one is guilty of transporting a liquor that may be described by either one of those terms. [State v. Pinto, 312 Mo. l.c. 109.] If the information charges more than was proven, it does not invalidate the verdict.
VI. Appellant further claims that Instruction B, given for the State, is erroneous. It is as follows:
"The court instructs the jury that the terms `hootch' and `moonshine' as used in these instructions, mean any Definitions. intoxicating liquor illegally distilled for beverage purposes regardless of the material or materials from which same may be distilled.
"The word `feloniously' as used herein and in the information means wickedly and against the admonition of the law.
"By intoxicating liquor as used in the instructions of the court is meant any distilled, spirituous, alcoholic liquor which contains more than one-half of one per cent of ethyl alcohol by volume and is potable and fit for beverage purposes."
It will be noted that this instruction does not authorize a verdict. Instruction A immediately preceding that requires the jury to find that the defendant feloniously transported hootch or moonshine, and they were directed to acquit the defendant if they did not so find. Instruction B only defines certain terms.
If the definition of hootch and moonshine, for the transportation of which the defendant was convicted, is erroneous, it would be ground for a reversal of the judgment. The definition in Instruction B that hootch and moonshine is intoxicating liquor illegally distilled is not incorrect, though it is not a complete nor a happy definition. The use of the word "distilled" applies to spirituous liquors as distinguished from fermented or brewed intoxicating liquors. It could not apply to home brew or to wine. [33 C.J. 494, 495.] The use of the expression in the definition "regardless of the material or materials from which the same may be distilled" would not enlarge the content of the term "distilled," because spirituous liquors are not distilled from material from which fermented or brewed liquors are made. We have defined hootch and moonshine as any kind of whiskey illegally manufactured. [State v. Griffith, 311 Mo. l.c. 641; State v. Pinto, 312 Mo. l.c. 109; State v. Wood, 11 S.W.2d l.c. 1042.] It might include other kinds of spirituous liquor. So the use of the word "distilled" confines the meaning of the definition to the proper limits, and could not include wine or beer.
The definition of intoxicating liquor in that instruction is in accordance with the statute. It might apply to wine or home brew or any liquor lawfully manufactured, and has no place in the case. The only question is whether, by incorporating it in the instruction, it was likely to mislead the jury. That instruction does not authorize a verdict; it is simply a definition of terms, a classification of intoxicating liquors. A jury is presumed to be composed of persons of average intelligence. This jury was instructed that, in order to convict defendant, they must find that he transported hootch or moonshine, as a distinct kind of liquor. The instruction could not have misled them.
VII. Complaint is made of other instructions. The court correctly defined the word "transport,' and Other correctly instructed the jury as to the Instructions. presumption of innocence which attended the defendant throughout the trial, and as to the credibility of witnesses.
VIII. Appellant complains of the refusal of certain instructions offered by the defendant. He offered Instruction 3, to the effect that the defendant could not be Refusal: convicted unless they found beyond a reasonable No Evidence. doubt that the "said liquid in evidence is hootch, moonshine, corn whiskey, and unless they should so find, they should acquit defendant." The effect of the instruction is that, if the liquor which defendant was charged with transporting was something else besides hootch. moonshine, then the defendant should be acquitted. There was not the slightest evidence that any other kind of liquor was transported. Therefore there was no evidence upon which to base such instruction.
Instruction 5, offered by the defendant and refused, defines hootch, moonshine and corn whiskey, as illegally Covered by manufactured whiskey; Instruction B given by the State's. court gives in effect same definition but more completely and clearly.
Appellant further complains of the refusal of his Instruction 6, which in all points was covered by instructions B and B3.
The case was well tried and there was ample proof to sustain the conviction and no error appears in the record. The judgment is therefore affirmed. All concur.