State v. Hall

• Decision Date: 07 February 1910
• Citation: 141 Mo. App. 701,125 S.W. 229
• Parties: STATE v. HALL.
• Court: Missouri Court of Appeals

125 S.W. 229

141 Mo. App. 701

STATE v. HALL.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. CRIMINAL LAW (§ 186) — FORMER JEOPARDY.

Under Rev. St. 1899, § 2373 (Ann. St. 1906, p. 1460), providing that, where defendant has been acquitted on a trial on the merits and facts, he may plead such acquittal in bar of any subsequent action for the same offense, notwithstanding any defect in form or substance in the indictment on which the acquittal was had, where a defendant was convicted on one count of an indictment for violation of the local option law and acquitted on the three other counts, he could not be tried again for the offenses alleged in the three counts on which he was acquitted, although the court on appeal held the indictment insufficient and discharged defendant, and where on a second trial under a new indictment the state used practically the same evidence as in the first trial, so that there was no possible way to ascertain whether or not the former jury found the defendant guilty or not guilty as to the sales sought to be proved by this evidence, the conviction on the second trial cannot be sustained.

2. CRIMINAL LAW (§ 549) — EVIDENCE — SUFFICIENCY.

A conviction based on mere conjecture will not be permitted to stand.

Appeal from Circuit Court, Newton County; F. C. Johnson, Judge.

Mont Hall was convicted of violating the local option law, and appeals. Reversed, and defendant discharged.

John T. Sturgis (W. Cloud, of counsel), for appellant. Thomas M. Saxton, Ex-Pros. Atty., Jas. H. Pratt and Horace Ruark, for the State.

GRAY, J.

At the October term, 1906, of the Newton county circuit court, the grand jury returned an indictment against the defendant, charging him with violating the local option law. The indictment was in four counts. The first count alleged the sale of intoxicating liquors on the 6th of October, 1906, the second count on the 5th day of October, and the third and fourth counts on the 3d day of October. The trial was had before a jury, resulting in a conviction on the first count, and a punishment of a fine of $1,000 assessed, and an acquittal on the second, third, and fourth counts. The defendant appealed to the St. Louis Court of Appeals, and that court held the indictment insufficient, and discharged the defendant. The case is reported in 130 Mo. App. 171, 108 S. W. 1077. After the discharge of the defendant, the prosecuting attorney on the 17th day of April, 1908, filed an information in said circuit court, charging that the defendant on the 6th day of October, 1906, sold intoxicating liquors, to wit, whisky, wine, and beer, without any legal authority, and further charging that the local option law was in force in said county at the time of said sale, and also alleging the former indictment and the proceedings thereon. The allegations concerning the previous indictment were put in the information for the purpose of showing that the statute of limitations had not run against the state. This information we find to be in proper form. The defendant, in addition to the plea of "not guilty," filed a special plea of former acquittal.

After introducing testimony of the former indictment, the verdict and mandate of the Court of Appeals thereon, and after offering the evidence of the adoption of the local option law, the plaintiff called three witnesses to give evidence touching the sale of intoxicating liquors by the defendant. Two of these witnesses testified that they purchased beer of the defendant in 1906, and a short time before the indictment was returned. These witnesses also testified that, when the defendant was tried on the former indictment, they were witnesses, and gave the same testimony. The other witness called by the state testified that he purchased intoxicating liquors of the defendant in 1906. There was no evidence that he testified at the former trial. The local option election was ordered on the 2d day of May, 1904, and to be held on the 8th day of June, 1904. There was offered in evidence in behalf of the defendant a certified copy of an...