The information charged defendant with the possession of moonshine whisky, and also with furnishing such whisky to one Dick Evans, and, upon trial by jury, he was convicted. Defendant reviews by writ of error, presenting the question of whether the evidence justified the verdict. Defendant offered no proofs, and, at the close of the testimony of the prosecution, moved the court to direct a verdict of not guilty. The motion was denied and the jury instructed:
"If you believe the testimony of the witnesses, if that convinces you beyond a reasonable doubt in this case, it would be your duty to convict. If it does not, it would be your duty to acquit." *Page 337
The motion, denial thereof, and the instruction, present the legal question for our consideration.
Peggy Lenhard testified that, at her home one evening, defendant and several others were present, and some of those present said that they would like to have a drink, and defendant went outside and brought in a glass gallon jug, the contents of which "had very much the appearance of, oh, dark colored tea," and drinks were given from the jug, and a pint bottle filled and given by defendant to Evans. No witness informed the jury of the nature of the liquor or said that it smelled like whisky or was intoxicating. Evans was a witness, and said he did not know whether the liquor was intoxicating or contained alcohol, that it did not intoxicate him, although he "felt the effects of it a little bit." The liquor was not produced. The evidence did not show the liquor to have been intoxicating or disclose facts justifying a reasonable inference that it was intoxicating. The evidence creates a suspicion or conjecture of the nature of the liquor, but that is not enough. No witness informed the jury that the liquor was intoxicating, and the court was in error in giving the mentioned instruction. The presumption of innocence and the rule of reasonable doubt still prevail, and difficulty experienced by the prosecution in proving a charge lets down no safeguards. We do not pass upon defendant's guilt or innocence, but only upon whether the evidence, in point of law, justified the verdict. The question has lately been considered by courts in liquor prosecutions.
In Cox v. Commonwealth, 140 Va. 513 (125 S.E. 139), the truism that "mere suspicion, however grave, is not sufficient to support a verdict of guilty," was applied.
In Parham v. State, 127 Miss. 8 (89 So. 775), Parham furnished a half-gallon fruit jar "full of *Page 338 something" out of his smokehouse, and was paid $10 for it. The person to whom he furnished it testified that "he did not know what this 'something' was; that he did not know whether it was whisky or whether it was intoxicating." The court said:
"There is no testimony in this case upon which a jury could believe beyond a reasonable doubt that the contents of the half-gallon fruit jar was intoxicating liquor. While we might strongly suspect that the object and purpose of the visit of the young gentleman to the defendant was to purchase intoxicating liquor, the testimony is absolutely silent as to the contents of the fruit jar, except that it was white in color. This witness made no examination of it, but merely assumed that it was the 'something' they wanted for the musicians. Before the defendant could have been convicted in this case, however, the testimony must have further shown that this 'something' was intoxicating liquor, and this the testimony fails to show."
See, also, State v. St. Clair, 247 S.W. 203 (Springfield Court of Appeals, Missouri).
In Hill v. State, 99 Tex. Cr. 290 (269 S.W. 90), it was held, quoting from the syllabus:
"Where in a prosecution for the sale of intoxicating liquor, the only evidence of an incriminative character was by a witness who testified that she saw her husband purchase something white in a bottle, from the appellant and pay him money for it. That it smelled like whisky, but that she did not know whether it was whisky or not, this evidence is not sufficient to sustain a conviction, and the cause is reversed and remanded."
See, also, Blue v. State, 21 Okla. Crim. 156 (205 P. 774). *Page 339
In State v. Weagley, 240 S.W. 822 (Springfield Court of Appeals, Missouri), a witness testified that:
"Weagley, * * * handed him a quart fruit jar containing some kind of red liquid, and, after witness had taken a drink of same, the defendant said, 'How is that for moonshine?' Witness said that it tasted more like cayenne pepper to him. Witness testified that he did not know whether it was whisky or not and did not know whether it would intoxicate or not, as he did not drink enough to see."
The court held:
"There is no evidence in this case to sustain a conviction for the violation of any law in Missouri with which we are familiar. We will therefore let this opinion take its place in the long procession of cases, commencing with the jurisprudence of Missouri, unanimously holding that there must be some evidence that a crime has been committed to sustain a conviction."
The conviction is set aside and a new trial ordered. If additional evidence cannot be produced the defendant should be discharged.
BUTZEL, POTTER, NORTH, and FEAD, JJ., concurred with WIEST, C.J.