State v. Fleetwood

• Decision Date: 02 May 1910
• Citation: 143 Mo. App. 698,127 S.W. 934
• Parties: STATE v. FLEETWOOD.
• Court: Missouri Court of Appeals

127 S.W. 934

143 Mo. App. 698

STATE v. FLEETWOOD.

Springfield Court of Appeals. Missouri.

May 2, 1910.

1. TIME (§ 9)— COMPUTATION — ELECTIONS — NOTICE.

Where a local option election was held September 1st, newspaper publications of the notice of the election on August 4th, 11th, 18th, and 25th preceding were sufficient, for by excluding August 4th and including September 1st, 28 days intervened between the first publication and the election, so that the statute was complied with.

2. CRIMINAL LAW (§ 1172) — ERRONEOUS INSTRUCTIONS — HARMLESS ERROR.

Where, on a trial for violating the local option law, the evidence of the state showed a sale of intoxicating liquors, and there was nothing to show that any liquor was given away, the error in submitting the issue of a gift in connection with an issue of a sale was not reversible.

3. CRIMINAL LAW (§ 807) — EVIDENCE — INSTRUCTIONS.

Where, on a trial for a violation of the local option law, the state showed that accused took an order and delivered intoxicating liquors in the county, and accused showed that he did not deliver or sell liquors, except from his boat in another county, and the jury assessed the punishment at a fine of $500 and six months' imprisonment in the jail, an instruction that the law does not allow evasions of the law, and that if accused took money from prosecutor and delivered liquor to him in the county, he was guilty, was erroneous because argumentative.

4. CRIMINAL LAW (§ 1163)—HARMLESS ERROR — INSTRUCTIONS — COMMENTING ON EVIDENCE.

An instruction, which improperly comments on the evidence, is improper because giving one of the litigants an advantage by argument from the court unduly influencing the jury, and a conviction will be set aside where the court on appeal cannot say that accused did not suffer

thereby, though a reversal does not necessarily follow.

5. INTOXICATING LIQUORS (§ 239)— VIOLATION OF LOCAL OPTION LAW — NECESSITY OF INSTRUCTIONS.

Where, on a trial for violating the local option law, the state showed that accused took an order for and delivered intoxicating liquors in the county, and accused claimed that he made no sale in the county, and that he did not deliver or sell liquor, except from his boat in another county, the court should in its instructions state what facts constitute a sale by accused in the county.

Appeal from Circuit Court, Ozark County; John T. Moore, Judge.

James Fleetwood was convicted of violating the local option law, and he appeals. Reversed and remanded.

Tessley J. Looney, Bob Derryberry, and G. W. Thornberry, for appellant. Geo. W. Boone, for the State.

GRAY, J.

The prosecution is by indictment returned by the grand jury of Ozark county, on the 13th day of August, 1907, charging that the local option law was in force in said county on said day, and that the defendant did then and there unlawfully sell one-half gallon of whisky to one Newton Mahan. The defendant entered a plea of not guilty, and was tried before a jury of his peers, and convicted, and his punishment assessed at a fine of $500, and six months in the county jail. The cause is here on his appeal.

On behalf of the state, Newt Mahan testified that in February, 1907, he gave the defendant $1.75 for intoxicating liquors, and that in a short time afterwards the defendant brought to him a quart of whisky, and later sent the other quart over by his boy, and this occurred in Ozark county. The state also introduced proof of the adoption of the local option law. The sufficiency of the notice of the special election at which the voters voted to adopt the law is challenged. The notice of election was published August 4, 11, 18, and 25, 1887, and the election was held September 1, 1887. If we exclude the 4th day of August, the date of the publication of the first notice, and include September 1st, the day of the election, we have just 28 days, and this is all the law requires. State v. Brown, 130 Mo. App. 214, 109 S. W. 99; State v. Polk (this day decided by this court) 127 S. W. 933. The defendant admitted that he was a dealer in intoxicating liquors, and had a government license, but denied he delivered any intoxicating liquors to the prosecution witness in Ozark county, and his version of the transaction was as follows: "Q. Tell ...