State v. Bush
| Decision Date | 19 April 1909 |
| Citation | 118 S.W. 670,136 Mo.App. 608 |
| Parties | THE STATE OF MISSOURI, Respondent, v. PRESTON W. BUSH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Gentry Circuit Court.--Hon. William C. Ellison, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
J. W Peery for appellant.
(1) The session of the county court on July 18, 1906, when the order for the election was made, was not a legal meeting. County courts are courts of record; their acts and proceedings can only be known by their record, and cannot be proven by parol. Dennison v. St. L. Co., 33 Mo. 168; Maupin v Franklin Co., 67 Mo. 327; Riley v. Pettis Co., 96 Mo. 318; Johnson Co. v. Wood, 84 Mo. 489; State ex rel. v. Baldwin, 109 Mo.App. 579. (2) County courts may hold adjourned terms, but such adjourned terms are mere continuations of the regular terms, and of course the record of the court must show the adjournment, in order to show the continuity of the term. Rose v. Kansas City, 128 Mo. 140; State ex rel. v. Railroad, 101 Mo. 137; Higgins v. Ransdall, 13 Mo. 205; Fannon v. Plumber, 30 Mo.App. 25; State ex rel v. Ross, 118 Mo. 47; State ex rel. v. Hixon, 41 Mo. 210; Holman v. Hogg, 83 Mo.App. 370; Cook v. Penrod, 111 Mo.App. 128; Stovall v. Emmerson, 20 Mo.App. 322; Freeman, Judg., sec. 121; Gimmert v. Askew, 48 Ark. 151, 2 S.W. 707; 8 Am. and Eng. Enc. L. (2 Ed.), p. 24, and notes. (3) The nunc pro tunc entries by which the court attempted to supply the omissions of the adjourning orders from its records, were void. A nunc pro tunc entry can only be based upon some record, or the judge's docket, or the minute book of the clerk. Paige v. Chapin, 80 Mo.App. 159; State ex rel. v. Baldwin, 109 Mo.App. 573; Burns v. Sullivan, 90 Mo.App. 1; Brd., etc., v. Drummond, 167 Mo. 54; Becher v. Deuser, 169 Mo. 159; Belkin v. Rhodes, 76 Mo. 562; Sweet v. Maupin, 65 Mo. 65; State v. Griffie, 118 Mo. 199; Gage v. Vail, 78 Mo. 454; Norton v. Porter, 63 Mo. 345; Foster v. Walden, 21 Mich. 507; K. C. Pump Co. v. Jones, 126 Mo.App. 536; 17 Am. and Eng. Enc. L. (2 Ed.), pp. 848, 849; Callihan v. Griswold, 9 Mo. 784; Myers v. Miller, 55 Mo.App. 338. (4) The burden was on the State to prove the publication of the result of the election, as a condition precedent to a conviction. State v. Hutton, 39 Mo.App. 419; State v. Searcy, 46 Mo.App. 422, 111 Mo. 236; State v. Dugan, 110 Mo. 138; 19 Am. and Eng. Enc. L. (2 Ed.), p. 514; Black on Intox. Liq., sec. 98; Toole v. State, 88 Ala. 158, 7 So. 42; Phillips v. State, 23 Tex.App. 304, 4 S.W. 893; Akin v. State, 14 Tex.App. 142; Loveless v. State, 40 Tex. Crim. 221, 49 S.W. 892; Langford v. Few, 146 Mo. 154; Reed v. Lowe, 163 Mo. 533; Cummings v. Brown, 181 Mo. 711; Bick v. Tanzey, 181 Mo. 515. (5) This judgment must be reversed because the venue laid in the indictment was not proved. State v. Hottle, 104 Mo.App. 34; State v. King, 111 Mo. 576.
Chas. E. Gibbany, Prosecuting Attorney, C. H. S. Goodman and Kelso & Kelso for respondent.
(1) Proceedings showing the adoption of the local option law in Gentry county. The statute provides that the county courts of the several counties shall hold four stated or regular terms of court each year, to-wit: on the first Mondays in February, May, August and November. R. S. 1899, sec. 1783; R. S. 1899, sec. 1787. "A term of court," as used in this statute means the period from the first day of a term fixed by law until court is adjourned to court in course, and the word "vacation" means the period between the day of final adjournment and the next term of court. State v. Derkum, 27 Mo.App. 268; Hadley v. Bernero, 97 Mo.App. 319; Warner v. Donahue, 99 Mo.App. 44; State ex rel. v. Railroad, 101 Mo. 150; Fannon v. Blumber, 30 Mo.App. 25; 1 Enc. of Pl. and Pr., p. 245; State v. Bonham, 19 Kan. 29; Langhorn v. Waller, 76 Va. 213; Union Pr. Co. v. Hand, 7 Kan. 380; Labradie v. Dean, 47 Tex. 100; Cole County v. Dallmyer, 101 Mo. 57; Bowen v. Stewart, 128 Ind. 507; Horton v. Sims, 88 Ga. 617; 1 Ency. of Pl. and Pr., p. 242. (2) The county court of Gentry county in the exercise of its power and duties as a court, had the right to order the entries of adjournment nunc pro tunc. Dawson v. Waldheim, 89 Mo.App. 245; Witten v. Robison, 31 Mo.App. 525; Railroad v. Mockbee, 63 Mo. 348; Gibson v. Chouteau, 45 Mo. 171; State v. Bird, 108 Mo.App. 169; 1 Ency. of Pl. and Pr., p. 931; Gillett v. Booth, 95 Ill. 185; Railroad v. Holbrook, 72 Ill. 419; Whittaker v. Gee, 63 Tex. 435; Ximenas v. Ximenas, 43 Tex. 464; Priest v. McMasters, 52 Mo. 60; Gamble v. Daugherty, 71 Mo. 599; Hansburt v. Fugs, 80 Mo. 377; Atkinson v. Railroad, 81 Mo. 50; Ross v. Railroad, 141 Mo. 390; Sperling v. Stubblefield, 105 Mo.App. 493; Cook v. Penrod, 111 Mo.App. 128; 1 Greenleaf on Evidence, sec. 19; State v. Thompson (La.), 46 So. 1013; Jillette v. Bank, 56 Mo. 304; Turner v. Christy, 50 Mo. 145; 17 Enc. of Pl. and Pr., 17, 913; Doane v. Glenn, 1 Colo. 456. (3) Proof of publication of the result of election. Long v. Joplin M. & S. Co., 68 Mo. 431; Lamax v. Harrison, 88 Mo. 496; State ex rel. v. Bank, 120 Mo. 169; Meddis v. Kenny, 176 Mo. 209; State v. Vaughn, 112 S.W. 730; State v. Kellogg, 113 S.W. 662; 1 Phil., Ev. (Cowen Hill's Notes), pp. 604, 605. (4) Appellant's request that State v. Oliphant, 128 Mo. App., is under the circumstances, peculiar, and was no doubt, dictated by the exigencies of the situation rather than by his innate modesty. To overrule the Oliphant case is to ignore the following cases: State v. Searcy, 39 Mo.App. 392; State v. Hutton, 39 Mo.App. 410; State v. Forman, 121 Mo.App. 502; State v. Seigenthaler, 121 Mo.App. 510. (5) The defendant seeks now to raise for the first time the question that the evidence introduced was not sufficient to prove the venue. We concede that the evidence might have been more direct and positive, but the venue will be sufficiently proven if from all of the facts and circumstances in evidence it may be fairly inferred. State v. Bailey, 73 Mo.App. 576; State v. Forrester, 63 Mo.App. 534; State v. Burnes, 48 Mo. 438; State v. West, 69 Mo. 404; State v. McGinnis, 76 Mo. 326; State v. Hill, 96 Mo. 358; State v. Sanders, 106 Mo. 188; State v. Pennington, 124 Mo. 392.
The defendant was indicted, tried and convicted in the Gentry Circuit Court for the illegal sale of intoxicating liquor in violation of the Local Option Law. From the judgment of conviction, he appealed.
The indictment averred that the Local Option Law was adopted within all that portion of Gentry county outside of the limits of the city of Stanberry, a city of more than twenty-five hundred inhabitants, and that the defendant unlawfully sold certain intoxicating liquors outside of said city limits in said county.
The State introduced in evidence a certified copy of the record of the county court of date of August 20, 1906, showing the declaration of the result of an election held on the 17th day of August, 1906, in the county, to determine whether or not intoxicating liquors should be sold in the county outside of the city of Stanberry; and proved a sale of liquor by defendant in November following and rested its case. Whereupon defendant asked a peremptory instruction to the jury to find defendant not guilty, which the court refused.
For the purpose of attacking the validity of the proceedings, certain records of the county court were introduced by the defendant. The record shows that the county court met on Monday, May 7, 1906, in regular session, and was in session on May 9th, June 4th, June 6th, July 2nd, and July 18th. At all these different meetings, except the first and last, the record recites that the "Court met pursuant to adjournment, all the members being present." There was no order of adjournment entered upon the court's minutes at the close of the day of 7th of May, the first day of its regular session. And no such entries were made when the court adjourned on May 9th, June 4th and July 2nd, but a final entry of adjournment was made on the 18th of July. It was on the last-named date that the order for the election was made.
At the regular January term of the court for 1907, the court made the following entry of record: "Whereas, it appearing to the court by an inspection of its records and the judges' notes that this court has inadvertently failed to enter upon its records its order of adjournment made by this court on the 7th day of May, 1906, whereby this court ordered its adjournment to meet on the 9th day of May, 1906; now, therefore, it is ordered by this court that said order of adjournment be entered upon the records of this court, now for then, in the following words and figures, to-wit: It is ordered that this court do now adjourn to meet on the 9th day of May, 1906." A similar entry was made as to the sessions of the court of June 4th and July 2d, 1906. The evidence showed that these nunc pro tunc orders were made without there being any contemporaneous entry, or memorandum, or writing upon the minute book, or any docket, or any other record of the court.
The validity of the election turns upon the question whether the court that made the order for such election was properly convened on July 18th, when the order was made for holding it.
It may be conceded that, "A court may, in the exercise of its common law power, when the state of the records kept by the court or the clerk show that a suitor was entitled to a particular judgment, but that the judgment was not entered at the term when it should or might have been entered, at a subsequent term cause the proper judgment to be entered to relate back to the term when it should have been entered." [Dawson v. Waldheim, 89 Mo.App. 245.]
It is held that "It is not necessary that the records of the court show, in order to...
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