State v. Cole

• Citation: 145 Mo. 672,47 S.W. 895
• Parties: STATE v. COLE et al.
• Decision Date: 07 November 1898
• Court: United States State Supreme Court of Missouri

47 S.W. 895

145 Mo. 672

STATE v. COLE et al.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

INDICTMENT — MOTION TO QUASH — PRESUMPTIONS — EVIDENCE — APPEAL.

1. Where the evidence introduced by agreement on a motion to quash an indictment as found without evidence is not incorporated in a bill of exceptions to an order sustaining the same, the court below will be presumed to have ruled correctly, and to have sustained the motion on the ground that the indictment was so found.

2. Where it appears by competent evidence on a motion to quash that an indictment was found without evidence, the motion should be sustained.

3. Proof, on a motion to quash an indictment, that it was made without evidence, may be made by the prosecuting attorney.

Appeal from circuit court, Adair county; Andrew Ellison, Judge.

Charles Cole and another were indicted for violating the local option law, and moved to quash the indictment. The motion was sustained, and the state appeals. Affirmed.

Edward C. Crow, Atty. Gen., and Sam B. Jeffries, for the State. Campbell & Campbell, for respondents.

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 regular 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 motion to quash the indictment, the evidence is not incorporated in the bill of exceptions, so that we are unable to pass upon its legal effect; and, under the circumstances, the presumption must be indulged that the court ruled correctly. If an indictment be found by a grand jury without any evidence, it will be quashed, on motion of defendant, if he sustain the motion by proper and competent evidence; and proof of such fact may be made...