State v. Curtis
| Decision Date | 11 January 1915 |
| Citation | 172 S.W. 619,185 Mo.App. 594 |
| Parties | STATE OF MISSOURI, Appellant, v. H. W. CURTIS, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Henry Circuit Court.--Hon. C. A. Calvird, Judge.
Judgment reversed and cause remanded.
James H. Wilson for appellant.
(1) An indictment that follows the language of the statutes substantially, in misdemeanor offenses is good. State v Remsaur, 140 Mo.App. 401; State v. Hicks, 170 Mo.App. 188; State v. Newman, 152 Mo.App. 149; State v. Muarer et al., 255 Mo. 165. (2) In determining the sufficiency of indictment or informations for misdemeanor offenses, under statutes designed to promote and preserve public morals, good order and decency, the matter for ascertainment is whether the information substantially charges an offense aimed at by the statute. State v Rouelle, 119 S.W. 55, 137 Mo.App. 620. (3) The statute upon which this indictment is based, as will be noticed is in the disjunctive and makes either of the acts mentioned therein criminal. The indictment unites and charges the offenses conjunctively in one count, which is proper. State v. Currier and Moore, 225 Mo. 649; State v. Harroun, 199 Mo. 519; State v. Pitman, 76 Mo. 56; State v. Bregard, 76 Mo. 322. (4) Where an offense charged may be committed by two different means, its commission by both means may be charged in one count of an indictment, and proof of either will sustain the allegation. In such a case it is said that proof that any of the means were used proves the offense, and proof that all the means described were used proves no more, the penalty being the same. Joyce on Indictments, sections 399, 400 and 401; 1 Bishop Criminal Procedure (4 Ed.), sections 434 and 438. (5) In determining the sufficiency of indictments for misdemeanors under statutes designed to promote and preserve morals, good order and decency, the matter for ascertainment is whether the indictment substantially charges an offense aimed at by the statute with sufficient particularity to apprise defendant of the act with which he is charged and to serve as a bar to a further prosecution of the same offense, and that unnecessary technicalities or refinements of reasoning will not be indulged. State v. Hicks, 170 Mo.App. 188; State v. Rouelle, 137 Mo.App. 620.
James D. Lindsay for respondent.
(1) The indictment is altogether bad because in each of the three counts it charges that the interdicted act was done "knowingly," that is, intentionally, and was also done "negligently, " that is, unintentionally. The terms are inconsistent, and cannot both be true. State v. Lockwood, 119 Mo. 463; State v. Weyland, 126 Mo.App. 723; State v. Lawrence, 178 Mo. 350; State v. White, 96 Mo.App. 34; State v. Boggess, 86 Mo.App. 632; State v. Flint, 62 Mo. 393. (2) The terms "negligently" and "knowingly," while of opposite significance, are also of equal significance, as used in the statute, and in the indictment. The court cannot reject either of them as surplusage, and leave the other. State v. Lockwood, 119 Mo. 467; State v. Flint, 62 Mo. 393; State v. Fitzsimmons, 30 Mo. 236. (3) When used in statutes defining an offense the word "knowingly" means "with knowledge, intentionally." 24 Cyc. page 806. And it embraces "designedly, unlawfully." State v. Halida, 28 W.Va. 499. It means with "guilty knowledge, not a bona-fide ignorance arising from neglect of the duty to keep posted." Utley v. Hill, 155 Mo. 232; State v. Ransberger, 106 Mo. 135; State v. Smith, 37 Mo. 58; State v. Snyder, 44 Mo.App. 429. (4) Negligently means carelessly; with the want of that due care required by the circumstances from a reasonably prudent person. 29 Cyc. page 415, and authorities cited; Wencker v. Railroad, 169 Mo. 592.
--Defendant was convicted on an information charging him with a violation of section 7214, Revised Statutes 1909 of the Dram Shop Act, which reads as follows:
The information is in these words: "The grand jurors . . . charge that H. W. Curtis on the -- day of July, 1913, at the county of Henry and State of Missouri, being then and there a dramshop keeper, did unlawfully, knowingly and negligently permit one Everett Phillips a minor under the age of twenty-one years to enter and remain in his said dramshop; against the peace and dignity of the State."
Defendant moved to quash the information for the reason that the allegations were "repugnant to each other, and contradictory in a material sense." The trial court sustained the motion and the State appealed.
We interpret the statute to mean that in order to complete the offense the minor must both "enter and remain." The Legislature did not mean to make an offense against the dramshop keeper if he merely permitted a minor to enter his shop. For such entry might be an errand of a merciful and moral nature, or it might be a business purpose. A great number of illustrations will occur to any one. So the law contemplates a "remaining," for, in that the evil attaches without any mitigating good.
Now this information charges that the defendant "knowingly and negligently" permitted the minor to "enter and remain." Defendant says that, knowingly and negligently, are repugnant words and that they contradict each other and thereby they make a bad pleading; and that if he knowingly permitted the minor to enter and remain he could not have negligently permitted him to do so. Used in the connection and for the purpose the statute uses them, we think, they are not inconsistent or repugnant. A dramshop keeper may know that a minor is in his shop and immediately form an intention not to allow him to remain, yet neglect, or put off, turning him out; in which instance he would both knowingly and negligently allow him to remain. It is true that a dramshop keeper might be so situated, or the furniture, or the crowd in his place be such that he could not see, or know, that one or more minors were there--remaining there--yet the circumstances might be such that he had good reason to believe they were. In such instance he should endeavor to ascertain; for if he did not, and minors were in fact remaining in the place, he would be "negligently" permitting them to do so. Therefore the statute will reach a dramshop keeper who may not know, but should have known--could have known--by a reasonable and honest effort to aid the purpose of the law. Therefore "negligently" may be said to cover more than "knowingly," but they are not repugnant.
Where the statute defines a crime...
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