Summary
In State v. Henry, Mo.App., 254 S.W.2d 307, 309, the Springfield Court of Appeals had before it the same question that confronts us here except that there was some testimony regarding the kind of beer sold.
Summary of this case from State v. MaupinOpinion
No. 7134.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, CHRISTIAN COUNTY, TOM R. MOORE, J.
E. C. Hamlin, Springfield, for appellant.
Bill Davenport, Pros. Atty., Christian County Ozark, for respondent.
Defendant was convicted of selling nonintoxicating beer to a minor and has appealed.
Appellant's first objection is that the information does not charge a crime under the Laws of Missouri and is not in the language of the statute.
Section 312.010 RSMo 1949, V.A.M.S., Laws of Mo. 1933, Page 265, Sec. 13139z-2, defines nonintoxicating beer as follows:
"The phrase 'nonintoxicating beer' as used in this chapter shall be construed to refer to and to mean any beer manufactured from pure hops or pure extract of hops, and pure barley malt or other wholesome grains or cereals, and wholesome yeast, and pure water, and free from all harmful substances, preservatives and adulterants, and having an alcoholic content of more than one-half of one per cent by volume and not exceeding three and two-tenths per cent by weight."
Section 312.400, passed in 1945, which makes it a crime to sell nonintoxicating beer, provides as far as material here:
"* * * Nonintoxicating beer shall not be given, sold or otherwise supplied to any person under the age of twenty-one years, but this shall not apply to the supplying of nonintoxicating beer to a person under said age for medicinal purposes only, or by the parent or guardian of such person or to the administering of said nonintoxicating beer to said person by a physician."
The information charged that the defendant, on the 13th day of May, 1951, in Christian County, did
"Unlawfully sell and dispose of certain non-intoxicating beer, in and about his premises, to-wit two bottles of Budweiser beer containing 3.2 per cent of alcohol to one Roscoe Linebaugh, a minor under the age of twenty-one years, without the written permission of the parents of said Roscoe Linebaugh, first had and obtained, and not for medicinal purposes, said Francis Henry not being, then and there, the parent or guardian of said Roscoe Linebaugh nor a licensed physician, * * *."
It was not necessary for the Prosecuting Attorney to negative all the exceptions in the statute. State v. Brown, 306 Mo. 532, 267 S.W. 864; State v. Smith, 332 Mo. 44, 56 S.W.2d 39; City of Brentwood v. Nalley, Mo.App., 208 S.W.2d 838; State v. McCowan, 331 Mo. 1214, 56 S.W.2d 410; State v. Haliburton, Mo.App., 194 S.W.2d 206.
The statute condemns the sale of nonintoxicating beer to a minor and that is all that was necessary to allege in the description of the offense. However, it does not invalidate the information to negative the exceptions. Sec. 545.030 RSMo 1949, V.A.M.S. They may be treated as surplusage.
Appellant next contends that there is no proof that the beverage sold was nonintoxicating beer. The evidence shows that the complaining witness, Roscoe Linebaugh, age 19, on the 13th day of May, 1951, went into defendant's place of business near Highlandville and bought three bottles of beer — two of them from the defendant. He asked for beer and when it was delivered to him, he paid for it and drank it, while sitting on the stool at the counter. All the testimony there is as to the nature of the beverage sold follows:
"Q. What was it you got in that bottle? Was it 3.2 beer? A. Yes.
"Q. Was it served you in brown beer bottles? A. Yes.
"Q. Was there Budweiser labels on it? A. Yes."
There is another statute defining intoxicating liquor, Section 311.020 RSMo 1949, V.A.M.S.:
"The term 'intoxicating liquor' as used in this chapter, shall mean and include alcohol for beverage purposes, alcoholic, spirituous, vinous, fermented, malt, or other liquors, or combination of liquors, a part of which is spirituous, vinous, or fermented, and all preparations or mixtures for beverage purposes, containing in excess of three and two-tenths per cent of alcohol by weight."
Another section condemns the selling of intoxicating liquor to a minor. Section 311.310 RSMo 1949, V.A.M.S. So we have two statutes, one for the sale of intoxicating liquor, that is, a liquor that contains more than 3.2% of alcohol by weight (which could include beer, a fermented liquor), and another for selling nonintoxicating beer as defined in Section 312.010, supra.
Of course it is clearly apparent from the testimony in this case that if the prosecuting attorney was trying to prove the alcoholic content of the beverage consumed was not more than 3.2% by weight, the answer of the witness was merely a conclusion or guesswork. He might by sight, taste and smell have known that it was beer but could not by these senses have knowledge of the exact percentage of alcohol it contained either by volume or weight. But, be that as it may, there was no testimony that it contained more than one-half of one percent of alcohol by volume which is an essential element. The fact that it was served in brown bottles or the fact it bore a Budweiser label does not prove the alcoholic content. If it contained more than 3.2% of alcohol by weight, defendant was not guilty of selling nonintoxicating beer but was guilty of selling intoxicating liquor under an entirely different statute and an offense with which he was not charged.
The legislature has gone into great detail in defining nonintoxicating beer and has made it an offense to sell it to minors. To convict one of this offense, the State must prove that the beverage sold was nonintoxicating beer as defined in the statute. Even if there had been absolute proof that the beverage did not exceed in its alcoholic content 3.2% by weight, there is no evidence that it did contain more than one-half of one percent by volume, not to mention the other elements set out in the statute. We cannot take judicial notice that proof of one percentage is proof of the other. Arnold v. United States, 8 Cir., 115 F.2d 523.
We recognize that testimony that a beverage is moonshine is sufficient to prove it intoxicating liquor because the court takes judicial notice that moonshine is unlawfully manufactured whiskey, State v. Griffith, 311 Mo. 630, 279 S.W. 135; State v. Johnson, Mo.Sup., 292 S.W. 41; State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777; State v. Miller, Mo.Sup., 12 S.W.2d 39; State v. Stanley, 217 Mo.App. 26, 273 S.W. 139, and that whiskey is intoxicating liquor. State v. Pigg, 312 Mo. 212, 278 S.W. 1030; State v. Minor, 318 Mo. 827, 1 S.W.2d 106; State v. Griffin, Mo.App., 45 S.W.2d 83. We would also take judicial notice that beer is a fermented liquor. State v. Effinger, 44 Mo.App. 81; State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68.
But we cannot take judicial notice that a beverage has a certain alcoholic content, merely upon proof that it is beer. State v. Malone, supra. Whether it contains the percentage of alcohol that makes it intoxicating or nonintoxicating is a matter the State must prove.
We think the State wholly failed to prove that the beverage sold was nonintoxicating beer within the statutory definition, and that defendant's motion for a directed verdict at the close of all the evidence should have been sustained. The judgment of the trial court is therefore reversed and the defendant should be discharged.
BLAIR, J., concurs in results.
McDOWELL, J., dissents in separate opinion.
I cannot agree with the majority opinion in this case holding that the State failed to prove that the beer sold was nonintoxicating.
In State v. Emrich, Mo.Sup., 250 S.W.2d 718, 725, the court states the following rule of law as to the sufficiency of the evidence after judgment to support the verdict, as follows:
"* * * The rule is that this court will not weigh the evidence in a criminal case if the verdict and judgment below is supported by substantial evidence, that is, by evidence legally sufficient to induce a belief of defendant's guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence. State v. Gregory, supra, 339 Mo. 133, 96 S.W.2d 47, 51. After conviction, all substantial testimony implicating the accused must be taken as true, and every reasonable inference indulged and then, if substantial testimony supports the verdict, it must stand. State v. Smith, 329 Mo. 272, 44 S.W.2d 45, 49."
The gist of the action in question is the sale of nonintoxicating beer to a minor. The statute provides that all beer having an alcoholic content not exceeding three and two-tenths per cent by weight is nonintoxicating. It also provides that beer having an alcoholic content not in excess of one-half of one per cent by volume is nonintoxicating.
Our courts have held that beer not containing an excess of more than three and two-tenths per cent of alcohol by weight is nonintoxicating. Thus if there were substantial testimony sufficient to induce a belief of defendant's guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence, the verdict must stand. The testimony quoted in the majority opinion is:
"Q. What was it you got in that bottle? Was it 3.2 beer? A. Yes."
This testimony was admitted without objection. Certainly a reasonable inference could be drawn by the jury that the witness was testifying that the contents of the beer sold to the minor contained three and two-tenths per cent alcohol by weight. Therefore, this testimony was sufficient proof after judgment to sustain the verdict.
I cannot agree with the majority opinion that it was necessary for the witness to testify that the beer had an alcoholic content not in excess of one-half of one per cent by volume where the testimony shows that the beer sold to the minor was not in excess of three and two-tenths per cent of alcohol by weight as provided in the statute.