State ex rel. Zehnder v. Robertson

• Decision Date: 19 December 1914
• Citation: 172 S.W. 6,262 Mo. 613
• Parties: THE STATE ex rel. ALBERT ZEHNDER et al. v. WILLIAM R. ROBERTSON et al., Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

172 S.W. 6

262 Mo. 613

THE STATE ex rel. ALBERT ZEHNDER et al. v. WILLIAM R. ROBERTSON et al., Judges of the Springfield Court of Appeals

Supreme Court of Missouri

December 19, 1914

Writ quashed.

Frank H. Farris, J. J. Crites and J. A. Watson for relators.

(1) The right of the relators to invoke this remedy and the right of this court to issue its writ of certiorari is now fully determined, and cannot be questioned. Thomas v Mead, 36 Mo. 232; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Broaddus, 245 Mo. 123; Curtis v. Sexton, 252 Mo. 221; State ex rel. v Ellison, 256 Mo. 644. (2) The information in this case was fatally defective; it did not allege that the Local Option Law had been adopted in Phelps county. And that it was a material allegation, and was required to be supported by proof and the holding of the court that the adoption of the law could be presumed or taken by intendment was in conflict with the decisions of this court, and with all of the courts of appeals in Missouri, and overruled in terms the established rule of law as fixed by the opinions of this court and the St. Louis Court of Appeals and the Kansas City Court of Appeals. 22 Cyc. 293; 3 Greenleaf on Evidence (8 Ed.), par. 10; 1 Bishop's New Criminal Procedure, pp. 83 84; 23 Cyc. 222; McLain on Criminal Law, 1232; Cook v State, 25 Fla. 698; Commonwealth v. Throckmorton, 32 S.W. 130; Commonwealth v. Boyd, 32 S.W. 132; Commonwealth v. Howe, 32 S.W. 133; Commonwealth v. Shelton, 35 S.W. 128; Norton v. State, 65 Miss. 297; State v. Chambers, 93 N.C. 600; Stewart v. State, 35 Tex. Cr. 391; Alford v. State, 37 Tex. Cr. 386. Every material allegation must be pleaded and a material allegation is such as must be proven. State v. Thierauf, 167 Mo. 444; State v. Hagan, 164 Mo. 659; State v. Phelan, 159 Mo. 122; State v. Patterson, 159 Mo. 102; State v. Evans, 128 Mo. 407; State v. Rector, 126 Mo. 328. These cases all hold in terms, if not in express words, that an information for a violation of the Local Option Law must charge that the law had been adopted. State v. Searcy, 39 Mo.App. 399; State v. Hutton, 39 Mo.App. 416; State v. Prather, 41 Mo.App. 458; State v. Hall, 130 Mo.App. 172; State v. Campbell, 137 Mo.App. 108; State v. Snider, 151 Mo.App. 702; State v. Wainwright, 154 Mo.App. 654; State v. Wright, 161 Mo.App. 600; State v. Dugan, 110 Mo. 143; State v. Searcy, 111 Mo. 236.

Corrie L. Arthur for respondents; C. C. Bland of counsel.

(1) The rule quoted by relators that "in every indictment and information every fact necessary to constitute the crime charged must be directly and positively alleged, and nothing can be charged by implication" (19 Cyc., 293) is applicable in its strictness to indictments and informations for a felony. State v. Ferguson, 152 Mo. 92. In misdemeanors less particularity and nicety in describing the offense is required than in felonies. State v. Hogle, 156 Mo.App. 367; State v. Seibeling, 143 Mo.App. 318; State v. Rowell, 137 Mo.App. 620; State v. Wainwright, 154 Mo.App. 653; State v. Fancher, 71 Mo. 460. (2) The information was sufficient. State v. Dugan, 110 Mo. 138; State v. Searcy, 111 Mo. 236. (3) The opinions of the Springfield Court of Appeals in the two Zehnder cases are in harmony with and are supported by the cases of State v. Campbell, 137 Mo.App. 105, and State v. Gallatin, 161 S.W. 848. (4) The allegation in respect to the Local Option Law being in force, of necessity includes the fact that it had been adopted, and was sufficient. State v. Rowell, 137 Mo.App. 620; State v. Hogle, 156 Mo.App. 336. The allegation is a statement of the ultimate facts, a sequence that followed from an election held under the provisions of article 3, of chapter 63, which resulted against the sale of intoxicating liquors within the boundaries of Phelps county, the order of the county court declaring the result of the election, and the publication of the result as required by law. It is a statement of the last in a train of sequences which resulted in the adoption of the law, and the putting it in force throughout the county. It is a statement of sequence which led to the end alleged, and includes all the preceding facts or steps required to put the law in operation. State v. O'Brien, 35 Mont. 482. It certainly included and was equivalent to a statement that the law had been adopted by the people of Phelps county. State v. Campbell, 137 Mo.App. 105; State v. Gallatin, 161 S.W. 848; State v. Brown, 151 Mo.App. 349.

GRAVES, J. Bond, J., concurs in result only.

OPINION

In Banc

Certiorari.

GRAVES J.

-- Certiorari to the Springfield Court of Appeals. To our writ the judges of that court have made due return. From the record before us in the instant case it appears that Albert Zehnder, Adalbert Kolb and Fritz Diir, were convicted in the circuit court of Phelps county, for the sale of liquor in violation of the Local Option Law, then in force in said county. From this judgment of conviction they appealed to the Springfield Court of Appeals, and in that court the judgment was affirmed as to Zehnder and Kolb, but reversed and remanded as to Diir. The information upon which the defendants in the circuit court were convicted reads:

"Corrie L. Arthur, prosecuting attorney in and for the county of Phelps, in the State of Missouri, informs the court that on the first day of April, 1913, and at all times hereinafter mentioned, the provisions of article 3, chapter 63, Revised Statutes 1909, known as the Local Option Law, was in full force and effect in the aforesaid county of Phelps, and that the defendants thereafter, to-wit, on the fifth day of December, 1913, at and in the said county of Phelps, did directly and indirectly sell intoxicating liquors, to-wit, one pint of beer at and for the sum of ten cents, and one pint of whiskey at and for the sum of ten cents, without then and there having a dramshop license or other legal authority authorizing them so to do, against the peace and dignity of the State.

"Prosecuting Attorney, Phelps County, Missouri.

"Corrie L. Arthur, prosecuting attorney, being sworn upon his oath, says that the above and foregoing information and the facts therein stated, are true according to his best knowledge, information and belief.

"Subscribed and sworn to before me, the undersigned notary public, this sixth day of December, 1913.

"(Seal) "Clark C. Bland,

"Notary Public."

The sufficiency of this information was challenged by motion to quash, motion for new trial and motion in arrest of judgment in the circuit court, and again challenged in the Court of Appeals, throughout the record there. That court held that the information was sufficient in language and in form, and that the verification thereto was good. This latter question as to the verification, whilst a live one in the Court of Appeals, is not such here. This, for the reason that it is not charged that the ruling of the Court of Appeals upon that matter is in conflict with any ruling of this court. In the instant case it is charged that the ruling of the Court of Appeals as to the sufficiency of the information is in conflict with the ruling of this court in the cases of State v. Dugan, 110 Mo. 138, 19 S.W. 195, and State v. Searcy, 111 Mo. 236, 20 S.W. 186. The point made is that the information does not allege the adoption of the Local Option Law in Phelps county, and that the opinion of the Court of Appeals conflicts with the view of this court in regard to the sufficiency of the information. The issue is therefore sharp and pointed.

I. Counsel for respondents have gone to the different States and present an array of authorities bearing upon the sufficiency of the information in this case. Some of these go to the length that the court will take judicial notice of the adoption of such laws. But in certiorari of the kind and character involved here, we are not really concerned as to what the true rule should be, but are only concerned with what the rule is in Missouri, as established by this court prior to the time the Court of Appeals acted. The purpose of the writ of certiorari to an inferior appellate court, is to keep their rulings in harmony with our rulings upon the same subject, so that all appellate opinions may speak as with one voice upon any one particular question. It would hardly be expected in this kind of a case that we would quash the Court of Appeals judgment, if it was made clear that they had followed our latest ruling upon the identical question, although our ruling might be wrong. The Constitution requires these courts to follow our latest ruling, and we cannot convict them of error if they so do, whether we were right or wrong.

The sole question therefore is: Did the Springfield Court of Appeals do violence to one of this court's latest opinions, when it held that this information properly charged the adoption of the Local Option Law in Phelps county?

We are not concerned about there being a more logical or better pronouncement of the law elsewhere. That subject may be more properly urged in some case here regularly in the course of appellate practice. The sole question in this case we take up next.

II. We are fully satisfied with the former holdings of this court as to what should be stated in an indictment or information under the Local Option Law. In State v. Searcy, 39 Mo.App. 393, Thompson, J., said:

"We hold that it is sufficient in such a case for the indictment to allege that the act of the Legislature approved April 5 1887, known as the Local Option Law, has been duly adopted and was in force as the law of the State within the territory within which the offense is laid, at the date of the alleged...