State v. Foreman

• Decision Date: 05 November 1906
• Citation: 121 Mo. App. 502,97 S.W. 269
• Parties: STATE v. FOREMAN.
• Court: Missouri Court of Appeals

97 S.W. 269

121 Mo. App. 502

STATE v. FOREMAN.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

1. INTOXICATING LIQUORS — LOCAL OPTION — EVIDENCE OF ADOPTION.

The local option statute requires a petition for a local option election to be signed by one-tenth of the qualified voters of the county who are qualified to vote for members of the Legislature, and the Constitution and Rev. St. 1899, § 6994, declare that a qualified voter shall be entitled to vote at all elections by the people. Held, that the record of a county court reciting that the required number of qualified voters signed a petition for a local option election showed that they were within the statute as it necessarily recited that they were qualified to vote for members of the Legislature.

2. SAME.

On a prosecution for a violation of the local option law, it is not necessary for the record of the county court to show how the court

ascertained the qualifications of the voters who petitioned for the local option election, though the local option statute provides that the county court shall ascertain who are qualified voters by the poll books of the last previous general election.

3. SAME—PROSECUTION—BURDEN OF PROOF.

On a prosecution for a violation of the local option law, it was not necessary for the state to show affirmatively that notice of holding of the local option election was given.

4. SAME—INDICTMENT—SUFFICIENCY.

Where, on a prosecution for a violation of the local option law, the indictment was returned in October, 1903, and alleged that the local option law was adopted January 10, 1900, "and has been and now is in force as the law of the state," and alleged a sale of liquor on August 15, 1903, an objection that it did not appear that the misdemeanor was committed while the law was in force at the time of committing the act, was untenable, as under the statute after the adoption of the law in January, 1900, it could not be changed or suspended for a period of four years.

5. CRIMINAL LAW—EVIDENCE—CONVICTION IN OTHER STATES.

In a criminal case, it was error to receive in evidence a record of a district court of another state, showing that a witness for the defense had been convicted of an unlawful sale of liquor where the authenticating certificate was made by the deputy clerk of the court in the name of the clerk, as the act of Congress requires that the clerk, himself, shall make the certificate.

Appeal from Circuit Court, Harrison County; P. C. Stepp, Judge.

William S. Foreman was convicted of a violation of the local option law, and he appeals. Reversed and remanded.

J. C. Wilson and Peery & Lyons, for appellant. S. P. Davisson, for the State.

ELLISON, J.

The defendant was indicted, tried, and convicted for selling liquors in Harrison county contrary to the local option statute which is alleged to have been adopted in that county.

It is urged by the defense that the evidence shows that the local option law was not adopted. The state introduced portions of the record of the county court, which showed a canvass of the votes cast in Harrison county at an election held submitting the local option law, and that a majority were cast in favor of adopting such law. The state further showed by such record that the county court ordered that notice of the result of the election, so ascertained, to be duly published in the "Bethany Republican." It was then shown that this notice was properly published. But the defense introduced the whole of the county court record, whereby the following appeared: "Now comes C. W. Crossan and others and presents to the court a petition signed by nine hundred and fifteen qualified voters of Harrison county, Missouri, asking the court to order an election in Harrison county. * * * And it appearing to the court that more than one-tenth of the qualified voters of said Harrison county have signed said petition, * * * etc." The law requires that the petition shall be signed "by one-tenth of the qualified voters of any county * * * who are qualified to vote for members of the Legislature. * * *" It further provides that the county court shall ascertain who are qualified voters "by the poll books of the last previous general election."

It will be noticed that the difference between the foregoing record of the county court and the law is that the latter requires that the petitioners shall not only be qualified voters, but that they shall be qualified to vote for members...