State v. Caldwell

• Decision Date: 06 December 1922
• Docket Number: No. 3239.,3239.
• Citation: 245 S.W. 626
• Parties: STATE v. CALDWELL.
• Court: Missouri Court of Appeals

245 S.W. 626

STATE v. CALDWELL.

No. 3239.

Springfield Court of Appeals. Missouri.

December 6, 1922.

Appeal from Circuit Court, Oregon County; E. P. Dorris, Judge.

George W. Caldwell was convicted of the illegal sale of liquor, and he appeals. Reversed and remanded.

J. D. Wallace, of Alton, and Barton & Impey, of Houston, for appellant.

COX, P. J.

Defendant was convicted upon a charge of illegal sale of liquor, and from the judgment following that conviction, he has appealed.

The information filed by the prosecuting attorney was in four counts. The first count charged an illegal sale of intoxicating liquor. The second count charged unlawful giving away; the third count charged unlawful transportation and the fourth unlawful manufacture of intoxicating liquor. Defendant filed a motion to quash the second, third and fourth counts, but did not attack the first count. This motion to quash was overruled, and defendant then filed an application for change of venue based upon the bias and prejudice of the court. This application for change of venue was overruled on the ground that supporting witnesses were not such as were required by the statute. There were three parties who had signed the affidavit supporting defendant's application, but the name of one of these was not in the body of the affidavit, and the court rejected him for that reason. One of the other parties whose name was in the body of the affidavit the court found to be only 16 years of age, and also that he had pleaded guilty to a misdemeanor in that court. When this application for change of venue was overruled, the defendant refused to plead or take any further steps in the case except to object to the jurisdiction of the court. The court proceeded with the trial, a jury was impaneled, evidence heard on the part of the state, and a verdict of guilty on the first count in the information returned by the jury.

The defendant filed a motion for new trial and a motion in arrest of judgment. Both of these were overruled, and judgment entered against defendant. In both of these motions the defendant for the first time as applied to the first count in the information challenged the constitutionality of section 6588, Stat. 1919, as amended by Session Acts of 1921, pp. 413, 414, under which the information was filed. If the constitutionality of that statute were properly before us, that fact would oust the jurisdiction of this court, and require that we certify this case to the Supreme Court, but we do not think the defendant properly raised and saved that question in the trial court, and for that reason it is not properly before us. The Supreme Court in this state has uniformly held that, to be available, a constitutional question must be raised at the earliest opportunity possible in the trial court, and if not so raised the question is waived. This rule has been held to apply to criminal as well as civil cases. As to the first count in this information, the question of the constitutionality of the statute was not raised until after conviction, and was raised for the first time in the motion for new trial and again in the motion in arrest of judgment. It should have been raised by motion to quash the information, or by objection to the introduction of testimony, or by asking an instruction to the jury to acquit on the ground of the unconstitutionality of the statute. This was not done, and, after having allowed the case to proceed, and having remained quiet until after a verdict of guilty was returned against him, he waived the question, and the fact that he raised the question by motion for new trial and in arrest of judgment cannot now avail anything. State v. Gamma, 215 Mo. 100, 114 S. W. 619.

We have never been able to see why a person convicted of a crime may...