State v. Fleetwood
| Decision Date | 02 May 1910 |
| Citation | 127 S.W. 934,143 Mo.App. 698 |
| Parties | STATE OF MISSOURI, Respondent, v. JAMES FLEETWOOD, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ozark Circuit Court.--Hon. John T. Moore, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
T. J Looney, Bob Derryberry and G. W. Thornberry for appellant.
George W. Boone for respondent.
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 whiskey 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 five hundred dollars, 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 whiskey, 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 twenty-eight 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).]
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 prosecuting witness in Ozark county, and his version of the transaction was as follows:
The court gave the following instruction in behalf of the State: "The court instructs the jury if you find from the evidence that James Fleetwood in the county of Ozark and State of Missouri at any time in February, 1907, did directly or indirectly sell, give away or barter in any manner whatever, intoxicating liquors in any quantity you will find the defendant guilty and assess his punishment to a fine not less than three hundred dollars nor more than one thousand dollars or by imprisonment in the county jail not less than six months nor more than twelve months or by both such fine and imprisonment."
It will be noticed that the instruction submitted the issue not only of a sale, but a gift or barter. The indictment charged that the defendant sold the whiskey and nothing was said therein about a gift.
In State v. Fulks, 207 Mo. 26, 105 S.W. 733, it is held that so much of the Local Option Law that prohibits the giving away of intoxicating liquors by acts of common courtesy, or friendship or hospitality not induced by a desire to sell such liquor, is unconstitutional.
As there was no evidence that any whiskey was given away, we do not believe that the error in submitting the question of a gift in the first instruction is sufficient to justify a reversal. [State v. Baker, 36 Mo.App. 58.]
The instruction is also faulty because it...
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