State v. Barnett

• Decision Date: 21 March 1905
• Citation: 86 S.W. 460,111 Mo. App. 552
• Parties: STATE v. BARNETT.
• Court: Missouri Court of Appeals

86 S.W. 460

111 Mo. App. 552

STATE v. BARNETT.

St. Louis Court of Appeals. Missouri.

March 21, 1905.

INTOXICATING LIQUORS—SALES WITHOUT LICENSE—DEFENSES — FORFEITURE OF LICENSE BY COUNTY COURT — JURISDICTION—SPECIAL TERMS—PROCEEDINGS NOT EMBRACED IN CALL —WAIVER OF IRREGULARITY.

1. Where at the time of a prosecution under Rev. St. 1899, § 3012, in a county court against a saloon keeper for keeping a disorderly house, an action was pending in the circuit court to forfeit the license for keeping a musical instrument in the saloon and permitting it to be played, the fact that the county court forfeited the license on the same evidence on which a forfeiture was adjudged by the circuit court, notwithstanding a plea of former action pending, did not render the forfeiture by the county court a nullity which could be taken advantage of by the saloon keeper's bartender, in a prosecution, after the forfeiture by the county court, against him for selling liquor without a license.

2. Where a proceeding to forfeit a liquor license was not embraced within the call for a called term at which it was forfeited, though it could not properly have been proceeded with at that term if an objection had been interposed, defendant having acquiesced in a hearing of the matter at such term, the irregularity was waived.

3. On a prosecution for selling liquor without a license, defendant being a bartender, the fact that his employer's license had been forfeited by the county court, but that such court had refused to grant an appeal from the order revoking the license, was no defense.

4. Where a liquor license had been forfeited by the county court in a prosecution against a saloon keeper for keeping a disorderly house, and had also been forfeited in the circuit court, in an action for such forfeiture, because of his having kept a musical instrument in the saloon, and permitted it to be played, an appeal from the judgment of the circuit court did not act as a supersedeas of the judgment of the county court, so as to deprive that judgment of its force, in a prosecution against the saloon keeper's bartender for selling liquor without a license.

Appeal from Circuit Court, Pemiscot County; Hy C. Riley, Judge.

Billy Barnett was convicted of selling intoxicating liquor without a license, and he appeals. Affirmed.

Chas. G. Shepard, for appellant. L. L. Collins, for the State.

Opinion.

GOODE, J.

This defendant was convicted of selling intoxicating liquor on the 18th day of January, 1904, without having a license as a dramshop keeper or any authority to sell the liquor. The defendant admitted selling a pint of whisky on the day charged in the information, and that he had no license as a dramshop keeper. He asserts he was justified under a license to Wm. H. Barnett, issued by the county court of Pemiscot county September 19, 1903, to expire March 18, 1904. The defendant was employed as bartender by Wm. H. Barnett when he made the illegal sale. To overcome the defense the state showed that at the November term of the circuit court of Pemiscot county Wm. H. Barnett was convicted of violating section 3018 of the Revised Statutes of 1899, and his dramshop license revoked by the circuit court as part of the penalty for the offense. The offense with which he was charged in the circuit court was keeping a musical instrument in his saloon and permitting it to be played. It was also shown by the state that the county court of Pemiscot county revoked Wm. H. Barnett's license as a dramshop keeper by an order entered December 23, 1903. This order of the county court was on a charge that the said Wm. H. Barnett had not kept an orderly house. Rev. St. 1899, § 3012.

In regard to the judgment of the circuit court undertaking to forfeit the license of his employer, the defendant contends that the operation of the judgment had been suspended by an appeal to this court taken prior to January 18, 1904, when the defendant made the sale of liquor for which he was convicted, and, therefore, as far as the judgment of the circuit court is concerned, his employer's license was in effect on that day and the defendant had a right to sell. As to the order of the county court revoking his employer's license, the defendant contends it was void for several reasons: First, because it was made at a called term of the county court, though the proceeding to revoke the license was not embraced in the call; second, because the license was ordered revoked for the same reason it was ordered forfeited by the circuit court, namely, permitting a musical instrument to be played in the saloon; that, therefore, the county court should have upheld the plea of the pendency of the prior action to forfeit the license which had been instituted in the circuit court when said plea was made by Wm. H. Barnett in the proceedings in the county court—in other words, that the pendency of the action in the circuit court to forfeit the license stood in the way of the county court's taking jurisdiction of the...