State v. Burk

NIXON, P. J.

This cause comes to this court upon an appeal by the defendant from a judgment of conviction in the circuit court of Lawrence county, for the unlawful sale of intoxicating liquors. On the 22d day of December, 19091, the prosecuting attorney of Lawrence county filed an information, duly verified, charging that on the 11th day of November, 1907, the Act of the Legislature of the State of Missouri, approved April 5, 1887, and known as the Local Option Law, was duly adopted within the corporate limits of the city of Aurora, in said county, and that while said law was in full force and effect in said city, the defendant did, within the limits of said city and county, “will *191 fully and unlawfully sell distilled, fermented and intoxicating liquor, to-wit, one bottle of beer, against tbe peace and dignity of tbe state.”

Tbe defendant entered a plea of not guilty and a trial was had before a jury on the 25th day of February, 1910, resulting in a verdict of guilty, and a punishment assessed at a fine of three hundred dollars.

The defendant contends in this court that the evidence- was insufficient to authorize the court to submit the case to the jury.

The defendant was running a restaurant in the. city of Aurora, and during the fall of 1909, sold to Louis Minor two cases of some kind of a medium beer. It was labeled “Piltzner Beer.” The testimony of the witness, Louis Minor, is brief, and we quote therefrom the following: “Q. Will get you to tell the jury whether or not along about last November you bought any beer from the defendant? A. I bought two cases of some kind of medium beer. Q. What was the name of that beer? A. The label said ‘Piltzner Beer.’ Q. What did you pay for that? A. I paid him $2.50' a case.” Cross-examination: “Q. You say it was marked ‘Piltzner Beer?’ A. Yes, sir. Q. Have you ever drank any beer before? A. Yes, sir; I guess I-have drank that in about a half-dozen states in the Union. Piltzner beer is a heavy beer, and an intoxicating beer, but what I got from Burks was a very light colored beer. Q. Was it intoxicating? A. I wouldn’t call it intoxicating. This was a very light beer if it was a beer. If it was a beer it was the lightest that I have ever seen or tasted. Q. Was it an intoxicating beer? A. Whether it is an intoxicating liquor or not, I could not say. I would not call it so unless a person was not use to intoxicants. Q. It doesn’t matter whether a person is used to it or not, was it intoxicating? A. I am not a judge of that. I would not say that it was or was not, for anyone that is not a judge of spirits fermenti. My opinion is that *192 it was not intoxicating. The regular Piltzner beer they claim is not intoxicating.”

The marshal of the city of Aurora testified that on or about the 10th day of November he went to defendant’s place for the purpose of making an investigation, and asked the defendant if the drinks he was selling contained alcohol, and that defendant replied that one grade he was selling contained one-half of one per cent alcohol, and the other grade less than' two per cent; that he received one shipment of the wrong-stuff which was too strong, and that he let the witness, Louis Minor, have two cases from that shipment and kept the other two cases himself.

Dr. Melton testified in behalf of the state that he went to the defendant’s place of business and asked him what about the reports that were going around that he was selling- beer or whisky; that defendant said “he was selling something there;” that one grade contained about one-half of one per cent alcohol and the other about two per cent; that he received a shipment which was too strong, and that he'let Louis Minor have two cases of that shipment and kept the other two.

We are satisfied that the testimony was sufficient 'to take the case to the jury. The witness who made the purchase testified that he could not say whether the so-called Piltzner beer sold by defendant was intoxicating or not, and that he would not call it so unless taken by a person who was not used to intoxicants. This testimony, coupled with the statements of the defendant that what he was selling contained from one-half of one per cent to about two per cent alcohol, made a case for the jury.

Under the Local Option Law, the term 1 ‘ intoxicating liquor ’ ’ embraces any beverage containing alcohol in any quantity whatever, and on a charge of selling intoxicating liquor contrary to the Local Option Law, it would not be necessary to prove that the article sold contained any special per cent of alcohol. [State *193 v. Martin (Mo.), 129 S. W. 931; State v. Gamma (Mo. App.), 129 S. W. 735.]

It is a well known fact that in localities where the Local Option Law has been adopted, so-called “beverages” are offered for sale, and they are used and become a substitute for the ordinary intoxicating drinks. They seldom contain a large per cent of alcohol, but as large a per cent as the seller believes he dare offer in a mixture and escape the penalty of the Local Option Law. It is also well known that whatever contains alcohol, will, if a sufficient quantity be taken, produce intoxication. The Local Option Law not only strikes at such liquors and mixtures as were recognized as intoxicating liquors but prohibits the sale of beverages of every kind which contain alcohol in any per cent as an ingredient of the mixture.

The trial court gave the following instruction: “You are further instructed that if you believe and find from the evidence beyond a reasonable doubt that the defendant at the county of Lawrence and State of Missouri, and within the corporate limits of the city of Aurora in said county and state, did sell intoxicating liquor, to-wit, beer, to the witness Louis Minor, for the price and sum of $2.50 or for any other sum, you will find the defendant guilty as charged in the information.” The court, at defendant’s request, also gave the following instruction: “The court instructs the jury that the charge against the defendant is the sale of intoxicating liquors within the corporate limits of the city of Aurora, Lawrence county, Missouri, and that it devolves upon the state to prove this beyond a reasonable doubt, and unless you find and believe from the evidence that the defendant did within one year next before the filing of the information in this cause, sell intoxicating liquors you will find the defendant not guilty. ’ ’

These two instructions when considered together *194 as one deliverance of the law to the jury told them that if they believed beyond a reasonable doubt from the evidence that the defendant sold intoxicating liquor, to-wit, beer, to- Louis Minor, and that the same was intoxicating, they should find the defendant guilty. By these instructions we think the able trial court properly declared the law of the case.

But it is contended that there was such a variance between the charge in the information and the proof offered in support thereof that the judgment should be reversed. It is urged that the liquor that was charged to have been sold was beer, and that the proof of the sale of any beer other than the ordinary beer would constitute a variance; that the proof of the sale of the so-called Piltzner beer does not support the specific charge in the information because the evidence further showed that Piltzner beer was not ordinary beer, and that although the article sold by defendant was labeled Piltzner beer, it was not a genuine Piltzner beer.

It was not necessary that the information should specify the kind of liquor sold. If the information had made the charge that the defendant sold intoxicating liquor, it would have been sufficient without stating the kind of liquor sold. [State v. Blands, 101 Mo. App. 618, 74 S. W. 3; State v. Kurtz, 64 Mo. App. 123.] The statute in regard to the" unlawful sale of intoxicating liquors in cities that have duly adopted the Local Option Law provides (sec. 7243, R. S. 1909) that after the adoption óf such law, it shall be unlawful to-sell any kind of intoxicating liquor or beverage containing alcohol in any quantity whatever. The charge of a sale of “intoxicating- liquor” under this statute, if the information had followed the language of the statute, would have been sufficient. The charge in this information, as we have seen, is that defendant sold “distilled, fermented and intoxicating liquor, to-wit, one bottle of beer. ” It will be seen that, under the authorities, the word “beer” was wholly an unnecessary al *195 legation, and that the substantial part of the information is the charge of a sale of ££intoxicating liquor;” that it need not have been named “beer” in the information as it was sufficient to allege that the defendant sold intoxicating liquor. [23 Cyc. 229.] But under a well known rule of pleading, where an information contains unnecessary allegations, they are material if they are descriptive of the identity of what is essential, and in such ease they .must be proved as laid and cannot be rejected as surplusage. [22 Ency. Pl. and Prac. 556.] It has been elsewhere held that in case of the charge of a sale of “whisky” in the information or indictment, the state may show ‘£whisky cocktail,” and that such proof would not be a variance;' but in this state it has been held that where the indictment charged the sale of whisky and the proof showed the sale of alcohol and not whisky, it constituted a material variance. The word “beer” is a generic term, and is so defined in the standard dictionaries. Webster defines it thus: “A fermented liquor made from any malted grain, but commonly from barley malt, with hops or some other substance to impart a bitter flavor. ■ Beer has different names, as small beer, ale, porter, brown stout, lager beer, according to its strength or other qualities. A fermented extract of the roots and other parts of various plants, as spruce, ginger, sassafras, etc.” The word “beer,” therefore, as used in the information, is beer in the usual acceptation of the term, namely, a fermented liquor. [State v. Houts, 36 Mo. App. 265; State v. Effinger, 44 Mo. App. 81; State v. Watts, 101 Mo. App. l. c. 660, 74 S. W. 376.] The article sold was specifically named in the information in this case as beer. The defendant was specifically notified that he was charged with having sold £ £ one bottle of beer,” and the state, under the authorities cited, was bound to prove the sale of beer to secure a conviction.

Attention is directed to the fact that our statute *196 in regard to local option, section 7238, Revised Statutes 1909, which applies to elections held in counties to determine whether or not liquor shall be sold contains this language stating the object of such elections to be, ‘ ‘ determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of-such county lying outside of such corporate limits. . . But section 7239, applicable to elections held in cities of twenty-five hundred inhabitants or more, provides that such elections shall be held “to determine whether or not spirituous or intoxicating liquors shall be sold within the limits of such city or town.” It is noticeable that the latter section omits the words of section 7238, “including wine and beer.” The decisions heretofore cited were under section 7238 relating to elections under the Local Option Law in counties, and this section gives a statutory definition of “beer” as intoxicating; but under section 7239, no such definition of “beer” is given.

By the rules of pleáding, the consequences of a variance between pleadings and proof may often be avoided by the use of the scilicet or videlicet. “Where a particular allegation, though not absolutely essential to the matter in issue, is desirable, the consequences of a variance may often be avoided by making it under a scilicet or videlicet.” [22 Ency. Pld. and Prac. 628.] “If the article sold belongs to the doubtful class, of which the courts are not willing to take judicial notice in respect to their properties, and if it is not named in the statute, the best method is to lay it under a videlicet; as for example, ‘intoxicating liquor, to-wit, beer.’ Here, although beer in general may be of a kind intoxicating or not, so that the word does not necessarily mean beer that is intoxicating, yet the term ‘intoxicating liquor’ controls.” [23 Cyc. 230, note 72.] As, under section 7239 upon which this prosecution is based, the beer was not specifically named, the charge in the information was laid under *197 a videlicet. The charge of the kind of liquor being beer, and beer being a generic term, the rule óf pleading applies that where a general term is used and a particular liquor is named under a videlicet, this will excuse the prosecution of strict proof, unless the matter should become essentially descriptive of the offense. [23 Cyc. 264; Bruguier v. U. S., 46 N. W. 502; U. S. v. Cora, 46 N. W. 503.] Under tírese principles, as applied to this case, the information having charged the defendant with a sale of beer, the liquor sold must come within the generic term “beer.” [23 Cyc. 228.]

The difficulties attending the making of proof to exactly correspond with the allegations of the indictment as they existed at common law induced many states to provide by statute that a variance between the indictment and the proof with respect to the description of any matter or thing named or described in the indictment should not be fatal unless material to the merits and prejudicial to the defendant. Our own statute, section 5114, Revised Statutes 1909. is as follows:

“Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian name and surname, or other description whatsoever, or any person whomsoever therein named 'or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.”

In the case of State v. Hutchinson, 111 Mr. l. c. 263, 20. S. W. 34, it was objected that there was a *198 variance between tbe name of the owner of the building and the money alleged to have been stolen, as charged in the indictment and proved on the trial. The court, in passing upon this objection, said: “The statute, we think, fully provides for such variances; It says they shall ‘not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case, and prejudicial to the defense of the defendant.’ ” In the case of State v. Crow, 107 Mo. l. c. 345, 17 S. W. 745, the statute again came under review and the Supreme Court said: “Upon the trial the evidence showed that the animal charged to have been stolen was a two-year-old. heifer. It is insisted that the variance between the allegation of ‘a cow’ and the proof of ‘a heifer’ is fatal to the verdict and judgment. There is nothing-in the evidence to indicate that defendant was taken by surprise by reason of the introduction of this evidence, or, if there was a variance, that it was prejudicial to his defense, or material to the merits of the case. The circuit court did not find- the variance prejudicial or material, and it was cured by the statute.”

In the case under consideration, no objection whatever was made in the trial court that the defendant was taken by surprise by reason of the proof that the state introduced to support the allegation made in the information as to the kind of beer he sold.

Again, a variance between the allegations of the information and the proof is not ground for an arrest of judgment (12 Oyc. 764) but must be brought to the attention of the trial court by objections to the introduction of the evidence. “In actions at law, whether civil or criminal, evidence offered in support of' an allegation with which it appears to be variant may and should be objected to as inadmissible, and if it be variant a refusal by the court to exclude it will be erroneous.” [22 Ency. Pl. and Prac. 632.] As we *199 have stated, no objection was made by the defendant at the trial to any evidence offered by the state as to the kind of liquor sold, and the question of a variance was not brought by any objection to the attention of the trial court, and hence is waived. At any rate there is nothing that occurred at the trial to indicate that the defendant was taken by surprise by reason of the introduction of the evidence, or, if there was a variance, that it was prejudicial to his defense or material to the merits of the case.

At the conclusion of the evidence, the defendant offered an instruction in the nature of a demurrer to the evidence, by which the question is presented to this court whether upon a consideration of the entire scope and meaning of the evidence the appellate court is authorized to declare as a matter of law that the evidence offered by the state was insufficient to prove that defendant was guilty of the sale of intoxicating liquor as charged in the information. The evidence offered by the state was to the effect that the defendant sold to Louis Minor two cases of “some kind of medium beer,” labeled Piltzner beer, and received therefor $2.50 per case. The witness, Louis Minor, testified that “Piltzner beer is a heavy beer, and an intoxicating .beer, but what I got from Burks was a very light colored beer;” that it was not the regular city Piltzner beer, and he gave it as his opinion that it was not intoxicating “unless a person was not used to intoxicants.” The marshall of the city of Aurora testified that on or about the 10th day of November he went to the defendant’s place for the purpose of making an investigation and asked the defendant if- the drinks he was selling contained alcohol, and the defendant replied that one grade he was selling contained one-half of one per cent alcohol, and the other grade less than two per cent; that he received one shipment of the wrong stuff which was too strong, and that he let the witness, Louis Minor, have two cases *200 from that shipment, and kept the other two eases himself. Dr. Melton testified in behalf of the state that he went to the defendant’s place of business and asked him about the reports that were going around that he was selling whisky or beer; that defendant told him he was selling two grades, one containing about one-half of one per cent alcohol, and the other about two per cent; that he received a shipment that was too strong, and that he let Louis Minor have two cases of that shipment and kept the other two.

Under this evidence, the question under proper instructions was submitted by the court as to whether the article sold by the defendant and called Piltzner beer was a fermented liquor containing alcohol. As the jury are the sole judges of the weight of the evidence and the credibility of the witnesses, they were not bound to take the statements of the witness for the state as conclusive as to whether Piltzner beer sold by the defendant was intoxicating, but were at liberty to take all the facts and circumstances in evidence into consideration in arriving at their conclusion. Whether the species of beer sold in this ease was Budweiser beer, Lemp’s beer, Milwaukee beer, or Piltzner beer is quite immaterial. The question was one of fact whether it was fermented liquor, commonly called beer and containing any quantity of alcohol whatsoever. The evidence was that defendant sold intoxicating liquor, that it was called-beer, was sold as beer, was bought as a beverage, was used as beer, and had the spirituous or alcoholic elements of beer, which evidence was sufficient to carry the issue of fact to the jury; and we are not prepared to invade the constitutional province of the jury and as a matter of law declare that under the evidence the so-calledi Piltzner beer sold by the defendant was not an intoxicating and fermented beer as described in the information. The trial court properly overruled the demurrer to the evidence.

*201 Finding no error in the record, the judgment is

affirmed.

Cox, J., concurs; Gray, J., dissents, files a separate dissenting opinion and asks that this cause be certified to the Supreme Court,

and it is so ordered.