State v. Clark

• Decision Date: 15 June 1885
• Citation: 18 Mo.App. 531
• Parties: STATE OF MISSOURI, Respondent, v. T. A. CLARK, Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 531

STATE OF MISSOURI, Respondent, v. T. A. CLARK, Appellant.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, J.

Reversed and remanded.

The facts sufficiently appear in the opinion of the court.

MCREYNOLDS & HALLIBURTON, for the appellant.

I. The appellant relies, for several reasons, mainly upon two points: (1) That the case tried and upon which the defendant was convicted, was a different offence from the one upon which he was tried and convicted before the justice. [[[[[[He was convicted before the justice on evidence of a sale of one drink to one Mattix, and on appeal to the circuit court, the state abandoned the sale to Mattix and relied for conviction on the facts stated in the opinion of the court]. Sects. 2058 and 3058, Rev. Stat. Mo., 1879; Webb v. Tweedie, 30 Mo. 488; Hansberger v. Pac. Ry. Co., 43 Mo. 196. (2) That the facts upon which the court instructed the jury to convict in the circuit court are insufficient to sustain the conviction, and do not constitute a sale, let alone such a one as contemplated by the statute. Hogg v. People, Illinois App. Ct., etc., No. 10, 1884, reported 17 Cent. L Journal, p. 476; United States v. Howell, U. S Circuit Court, W. D. Louisiana, reported in 20th Federal Reporter, p. 718, and 19th Cent. Law Journal, p. 137.

No brief on file for respondent.

OPINION

ELLISON J.

This is an indictment against defendant for selling liquor in less quantities than one gallon. He was tried and convicted in the court below, and appeals to this court.

The following facts appeared in evidence on cross-examination of defendant. That Clark and a number of his neighbors at Smithfield made up a club and sent to St. Louis for a ten gallon keg of whiskey, agreeing before they sent on the amount each one was to take, and that each one was to pay just what it cost to get it; including his proportion of the freight, the money not being advanced because it was not known what it would cost. Clark having been in the saloon business, he was to order the whiskey, and not knowing the price, it was agreed that each one was to pay his proportion when the liquor came. The liquor came and was divided among the club in the quantity agreed upon at the time of sending some taking one gallon, some two gallons, and two taking one-half gallon each, and paying Clark therefor the cost of same. The court instructed the jury that the delivery of the half gallon, as above set forth, was a sale of liquor in less quantity than one gallon without license, and that they should find defendant guilty.

Speaking of the sale of intoxicating liquor, Bishop in his Statutory Crimes, section 1013, says: " From whatever motive parties so shape a transaction that it does not constitute a sale, or a sale of the forbidden quantity, and it is not meant to be such, they escape the statutory penalty. But no mere evasion of the law, where a sale is the thing intended by the parties, it being for the jury to say whether or not such was their intent, when prima facie, the transaction was not a sale, will avail them." Again he says, section 1046: " Every fact which is an indispensable element in the offence must be proved, but no more need be; " and " proof...