dissenting.
I respectfully dissent. For reasons stated below, our system of probation does not intend or permit the indiscriminate revocation of probation and automatic commitment to imprisonment as was done here.
I
The trial court found that defendant did on October 7,1979 drink intoxicating beverages, to wit, Busch beer, and that this constituted violation of a special condition of his probation, for which probation was revoked.
The single bit of evidence on which this finding rests is that a deputy sheriff saw defendant drink from a can labelled Busch beer.
I doubt if this is sufficient. There is no direct proof as to what was in the can. Even if it is reasonable to assume that a can bearing the name or label Busch contained beer, the later Missouri cases have *394consistently refused to take judicial notice that any beverage called “beer” is intoxicating or contains alcohol. State v. Maupin, 268 S.W.2d 39, 40 (Mo.App.1954); State v. Henry, 254 S.W.2d 307, 309 (Mo.App.1953); State v. Malone, 238 Mo.App. 939, 192 S.W .2d 68, 71 (1946).1 The principal opinion does not mention these cases.
In the Ohio case cited in the principal opinion, State v. Miller, 45 Ohio App.2d 301, 345 N.E.2d 82, 85 (1975), there was a special condition that defendant “refrain completely from the use of intoxicating liquors”, but there is no similarity on the facts beyond that. The defendant in the Ohio case was seen leaving a bar after midnight; he then created a disturbance in a nursing home, twice passed out, and a few hours later was found in an intoxicated condition on the floor of his living room. There was no evidence as to what he had been drinking, but the court said it could fairly be inferred that he had not refrained completely from the use of intoxicating liquor. This, of course, is true, but there is no evidence of this kind in our case.
The prohibition here was against drinking intoxicants. Under the Missouri cases, the prosecution failed in its proof. Unless the trial court could somehow know judicially that the can contained intoxicants, which under the Missouri law cannot be done merely from the fact the label on the can said Busch beer, there is no proof that the defendant drank any intoxicants at the specific time and place in question.
There was no evidence that defendant was intoxicated or showed any signs of intoxication. He was not causing a disturbance. There was no evidence of any smell of intoxicants.
The principal opinion relates that two witnesses saw defendant holding a can of beer. This cannot be considered evidence that he drank intoxicants. Neither witness saw him drink anything. Neither witness even said the can was open. The principal opinion also relates that on two or three occasions a person accompanying defendant purchased a case of Busch beer and placed it in the vehicle defendant was driving. This is not proof that defendant violated the prohibition against drinking intoxicants, nor did the trial judge so find. The trial judge found, as the principal opinion recites, that defendant consumed alcohol the night of the fire, October 7, 1979. The evidence is too flimsy to support the finding. I do not believe the trial court had any right to revoke probation on the ground stated under the record before us.
II
Even if we assume that there was evidence supporting the conclusion that defendant violated the terms of probation by taking a drink from a can of beer on the night in question, the trial court abused its discretion in revoking probation on that ground and committing defendant to eight years imprisonment. The principal opinion recognizes that this court must determine whether or not the trial judge has abused his discretion in revoking probation. The discretion of the trial judge is not absolute or unreviewable. The question to be resolved once the matter reaches the appellate court (in this instance through habeas corpus) is whether in revoking probation the trial judge abused his discretion. State v. Gideon, 510 S.W.2d 190, 192 (Mo.App.1964). The action cannot be “arbitrary or capricious”, nor can the defendant be made “the victim of whim or caprice.” State v. Wilhite, 492 S.W.2d 397, 399 (Mo.App.1964).
“An abuse of discretion is an erroneous finding and judgment which is clearly contrary to the facts and circumstances before the court-a judicial act which is untenable and clearly against reason and which works an injustice.” State v. LeTourneau, 515 S.W.2d 838, 844 (Mo.App.1974).
In considering the facts and circumstances before the court and whether there was an abuse of discretion, there are certain *395principles involved: the decision to revoke probation should not be a reflexive reaction to a technical violation.2 United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978). The purposes of probation are to help individuals reintegrate into society as constructive individuals as soon as they are able and to alleviate the costs to society of keeping an individual in prison. Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484 (1972). One placed on parole or probation “is entitled to retain his liberty as long as he substantially abides by the conditions ...” Ibid at 479 (emphasis added). “[Probation should be revoked only in those instances in which the offender’s behavior demonstrates that he or she ‘cannot be counted on to avoid antisocial activity.’ ” Reed, 573 F.2d at 1024.
As earlier stated, the ground found by the court is that defendant violated the terms of his probation in taking a drink from a can of beer. There was no proof that defendant was then or at any other time engaging in any antisocial activity. He was doing no more than watching a house on fire in a rural area. There is no evidence that drinking was involved in the second degree burglary to which he pleaded guilty. Outside of the beer situation, there was no proof worthy of the name that he had violated any of the other terms of probation. While it is not definitely stated, the inference from defendant’s witnesses is that he was working and living at home with his parents. Aside from having a can of beer in his hand, there is nothing to indicate defendant was not getting along all right on probation. There was no showing that any steps were needed to protect society. Where the most damning circumstance against petitioner is that he took a sip of beer, it is clear that he is substantially abiding by the conditions of probation and in the absence of any antisocial conduct, is entitled to retain his liberty.
The principal opinion characterizes defendant’s conduct as blatant and flagrant. “Blatant” carries a meaning such as offensive, obtrusive, demanding undue attention, obstreperous. Its antonym is decorous, reticent. “Flagrant” means glaring, rank, nefarious, monstrous, outstandingly bad, in the sense sought to be conveyed here. Neither description used is fitting. A sip of beer is a sip of beer and calling it blatant or flagrant does not change the fact. There is no evidence whatever that defendant was parading the can of beer or whatever drinking he did from it. He was not attempting to attract attention or insult anyone. He was standing quietly at the scene of a fire. The occasion was not a public gathering of any sort, arranged in advance. While the record is not very clear, there is no evidence of more than a few persons being present.
Stripped of color words, the facts are that at most defendant drank from a can of beer while watching a fire in the country, in the presence of a deputy sheriff. This deviation from the literal observance of the condition of the probation does not warrant being sent to the penitentiary for eight years. The action taken by the court is out of all proportion to the violation committed. The trial judge abused his discretion. The ground given is untenable, his action was against reason, and it worked an injustice on a defendant who was getting along all right on probation.
Ill
Finally, even if points I and II above can somehow be disregarded, under our own decision of Abel v. Wyrick, 574 S.W.2d 411, 419 (Mo. banc 1978) a remand is required because the trial court did not consider the alternatives to incarceration. Even where a violation of a condition of probation is not technical, a judge must give more than cursory consideration to the alternatives. In Abel we said as follows:
“It is clear that the judge did not consider alternatives to incarceration or the relative benefits of incarceration to petitioner and to society, as opposed to the *396benefits of some alternative treatment, but simply decided to incarcerate on the basis of the broken conditions of probation themselves. On these facts, this was an abuse of discretion. The judge at a probation revocation hearing must allow a probationer a meaningful opportunity to present his evidence, and must consider that evidence.”
The principal opinion concedes that the Abel case mandates consideration of alternatives, but concludes sufficient consideration was given by the trial court, referring to the testimony of the probation officer and the remarks of defendant’s counsel.
The probation officer testified that he had “determined” that in the past defendant “had abused alcohol quite extensively”. No details or supporting data were given and as earlier mentioned, there is no indication that drinking was in any way connected with or a contributing cause to the second degree burglary which got defendant into trouble in the first place. As to rehabilitation, the officer testified that defendant had obtained a job at Brown Shoe Company and that while there were rehabilitation programs available, he had made no suggestions to defendant as to any such program. Defendant had never been put into any type of alcoholic treatment program and in response to the question as to whether he had requested defendant voluntarily to enter a program, the response was, “He never admitted having a drinking problem”.
In this connection the principal opinion points out there is no claim that defendant is an alcoholic (this was in support of the legitimacy of the special condition against using intoxicants-it was not unreasonable because defendant was not an alcoholic), yet then treats defendant as an acknowledged alcoholic and justifies the absence of any effort by the probation officer to put defendant into an alcoholic treatment program on the ground that defendant “never admitted having a drinking problem”, an admission which is commonly regarded as essential from an alcoholic before alcohol treatment programs are effective.3
There is nothing in this record to justify assuming defendant is an alcoholic (or excusing efforts to help him on that ground). In the course of trying to justify two other grounds for revocation of probation (both of which failed completely of proof), there was a good deal of testimony about defendant’s activities in the neighborhood, but no evidence that defendant had been seen intoxicated or that he was “abusing” alcohol. As earlier pointed out, it is not even claimed that he was intoxicated on the evening of the fire.
As for what defendant’s lawyer said to the court, he discussed briefly the merits of the case-whether there was any probation violation at all. He did point out that defendant had not been put in any type of available rehabilitation program, but neither he nor anyone else made any specific suggestions or offered any plan. He concluded by asking that if probation were revoked that a second probation be granted and defendant be admitted to a rehabilitative program.
The court’s response was immediate and was as follows:
“The Court finds from the evidence that on October 7th, 1979, in the County of St. Francois and State of Missouri, the Defendant did drink intoxicating beverages, to-wit, Busch beer, in St. Francois County. The Court finds from the evidence that the Defendant did violate special condition number 9 of his probation, which is that he was ordered not to drink intoxicants at any time or place.
“The Court finds from the evidence that he has violated that special condition of his probation, and the Court does revoke the Defendant’s probation for that violation.
“Mr. Sincup, do you know of any lawful reason why the Court should not impose sentence upon you in accordance *397with this Court’s sentence on September 7th, 1979?”
Not one word was said to indicate any consideration by the court of alternatives. The record demonstrates a reflexive, discre-tionless reaction to a technical violation of the special condition of probation about intoxicants. The court, as said in Abel v, Wyrick, supra, “simply decided to incarcerate on the basis” of the can of beer incident. Alternatives were not considered or mentioned by the court. The court ignored defendant’s effort to be a productive member of society and severed him from his job, his community, and his family. Petitioner’s status as a probationer should be restored and if probation is to be revoked the trial court should exercise his discretion to consider the alternatives to imprisonment in accord with the guidelines set forth in Abel.
. But see State v. Wills, 154 Mo.App. 605, 136 S.W. 25 (1911) and State v. Mitchell, 134 Mo.App. 540, 114 S.W. 1113 (1908).
. The state conceded in oral argument that petitioner’s alleged violation was technical and that the condition in question was not related to the circumstances of the offense for which petitioner was placed on probation.
. See Alcoholism' and Alcoholics, Questions and Answers about Alcoholics Anonymous, pp. 6 7 (1952).