47 S.W. 895 (Mo. 1898), State v. Cole

Citation:47 S.W. 895, 145 Mo. 672
Opinion Judge:Burgess, J.
Party Name:The State, Appellant, v. Cole et al
Attorney:Edward C. Crow, Attorney-General, and J. C. Storm for appellant. Campbell & Campbell for respondents.
Judge Panel:Burgess, J. Gantt, P. J., and Sherwood, J., concur.
Case Date:November 07, 1898
Court:Supreme Court of Missouri
 
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Page 895

47 S.W. 895 (Mo. 1898)

145 Mo. 672

The State, Appellant,

v.

Cole et al

Supreme Court of Missouri, Second Division

November 7, 1898

Appeal from Adair Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

Edward C. Crow, Attorney-General, and J. C. Storm for appellant.

Campbell & Campbell for respondents.

(1) If this indictment was found without evidence, as alleged in the motion to quash, then the action of the lower court in quashing said indictment was proper. The evidence is not called for or preserved in the bill of exceptions. It therefore follows that this court has not before it, the case on which the lower court passed. And this court can not say that the circuit court erred unless it is shown that the evidence heard by said court did not prove the allegations of the motion that no evidence was heard by the grand jury. Spence v. Crow, 47 Mo.App. 321; Kansas City v. Neal, 49 Mo.App. 72; Miller v. Leeper, 120 Mo. 466; Flynn v. Neosho, 114 Mo. 567; Smith v. Johnson, 107 Mo. 494.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Page 896

[145 Mo. 673] Burgess, J.

Defendants were indicted in the circuit court of Adair county for violating the local option law by selling as druggists in the city of Kirksville in said county, intoxicating liquors to one S. N. Denton in less quantity than four gallons, without him the said Denton having first obtained a written prescription from a regularly registered and practicing physician authorizing such sale.

At the October term, 1897, defendants filed their motion to quash the indictment upon the following grounds:

"1. Because it does not allege that the city of Kirksville was an incorporated city.

"2. Because the local option law is unconstitutional.

"3. Because said indictment was found, if found at all, by the October grand jury without having any evidence touching the guilt or innocence of the accused."

The motion was sustained and the State appealed.

While the record discloses that by agreement of parties evidence was heard upon the...

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