State v. Fraser

• Citation: 143 S.W. 545,161 Mo.App. 333
• Parties: STATE OF MISSOURI, Respondent, v. ROSCOE FRASER, Appellant
• Decision Date: 05 February 1912
• Court: Court of Appeal of Missouri (US)

143 S.W. 545

161 Mo.App. 333

STATE OF MISSOURI, Respondent, v. ROSCOE FRASER, Appellant

Court of Appeals of Missouri, Springfield

February 5, 1912

Appeal from Dent Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

Wm. P Elmer and J. D. Gustin for appellant.

(1) The second count charged acts constituting different offences. They may be so charged in separate counts, if the acts charged are not repugnant, but not in the same count. State v. Nichols, 124 Mo.App. 330; State v Fox, 148 Mo. 517; State v. Blakely, 184 Mo 187. (2) The information charged "keeping, storing for and delivering to" the witness Mattison. The acts of keeping and storing for the inconsistent with "delivering to" and cannot be charged in the same count. Kelley's Criminal Law, p. 121, sec. 201. (3) The information should negative defendant's right to sell intoxicating liquor as a dramshop keeper or wholesaler. An allegation that the Local Option Law is and has been in force for several years does not supply the omission. An indictment for violating the Local Option Law must negative a licensee's right. A wholesaler or dramshop keeper could not be convicted of selling, storing or delivering in local option counties while their licenses are in force. A druggist has the right to sell, under certain conditions, in local option territory, implying the right to keep store and deliver. State v. Baker, 71 Mo. 475; State v. Tissing, 74 Mo. 72; State v. Braun, 83 Mo. 480. (4) The information was not verified until the day after it was filed. This could not be done without leave of court and none was obtained. State v. Gutke, 188 Mo. 424; R. S. 1909, sec. 5061. (5) The words, "keep, store, deliver," are used in their legal sense and in connection with the purpose and intent of the Local Option Law to prohibit the illegal sale of intoxicating liquors. 4 Words and Phrases, 3914; 7 Words and Phrases, 6675. (6) The Act of 1907 is directed against keepers of order houses and designed to prevent violations of the Local Option Law. The cases cited below fully explain it. The act is auxiliary to the Local Option Law. State v. Price, 229 Mo. 670, 129 S.W. 650; State v. Buehler, 148 Mo.App. 615; State v. Clow, 131 Mo.App. 548.

L. T. McGee, Prosecuting Attorney, and Eugene W. Bennett, Assistant Prosecuting Attorney, for respondent.

(1) The information is valid and sufficient and concisely presents the charge under the statute. R. S. 1909, sec. 7227; State v. Price, 229 Mo. 670; State v. Rawlings, 134 S.W. 530. (2) The information is not bad for duplicity because it charged "keep and store for and deliver to." And certainly there can be no complaint as the court withdrew from the consideration of the jury the question "keep and store" and instructed alone on "deliver." State v. Fletcher, 18 Mo. 425; State v. Myers, 20 Mo. 411; State v. Heinze, 45 Mo.App. 410; State v. Pittman, 76 Mo. 56; State v. Cannon, 134 S.W. 513; State v. Rawlings, 134 S.W. 530; State v. Hogle, 137 S.W. 21. (3) There was no motion or request for the state to elect on which charge it would proceed, whether for "keeping" "storing," or "delivering" and such objection cannot be raised for first time on appeal. State v. Fox, 148 Mo. 517; State v. Blakely, 184 Mo. 190; State v. Harding, 184 Mo. 190; State v. Hartzell, 184 Mo. 191; State v. Cannon, 134 S.W. 513. (4) Where the information uses the words "keep and store for" and "deliver" and defendant is convicted for "delivering" the words "keep and store for" will be treated as surplusage. R. S. 1909, sec. 5115; State v. Rawlings, 134 S.W. 530. (5) The information is sufficient against the attack "that the information should negative defendants right to sell intoxicating liquor as a dramshop keeper or wholesaler." The information need not negative exceptions in other clauses or other sections of the statute which create defenses and as the exceptions complained of are contained in a different section they need not be negatived. State v. Buford, 10 Mo. 704; State v. Meek, 70 Mo. 355; State v. O'Brien, 74 Mo. 549; State v. Brockstruck, 136 Mo. 351; State v. Price, 229 Mo. 682. (6) The fact that the verification to the information is shown to be the day following the filing is but a clerical error and appellant waived any such defect by not calling the attention of the trial court to the same by motion to quash, and besides, even the mission to verify an information is simply an irregularity which does not render it or the proceedings under it void and if no objection is made on or before the trial that the information is not supported by affidavit or not verified, that objection is waived and cannot be made on appeal. R. S. 1909, sec. 5115; State v. Schnettler, 181 Mo. 173; State v. Brown, 181 Mo. 192; State v. Runzi, 105 Mo.App. 319; State v. Sharpe, 119 Mo.App. 386.

NIXON, P. J. Cox, J., concurs. Gray, J., files separate dissenting opinion.

OPINION

NIXON, P. J.

The defendant was tried in the circuit court of Dent county upon an information containing two counts, the first, the offense of selling intoxicating liquors in violation of the Local Option Law, and the second with unlawfully delivering intoxicating liquors in a county in which the Local Option Law was in force. He was acquitted on the first count, but convicted on the second, and has appealed to this court.

Roy Mattison testified for the state that he was in the city of Salem in Dent county on the 4th day of April, 1911, and met the defendant with whom he was acquainted; that he got three pints of whiskey--two of them from the defendant at different times; that the first time, Fraser delivered the whiskey in the front room of Sam Fraser's music store in Salem while Sam was on the outside; that at this time--about eight or nine o'clock in the morning--the boys were hiding behind an organ, and that the defendant at this time took a bottle out of his pocket and delivered it to him. He testified that the second pint of whiskey was given to him by the defendant afterwards while they were in the back room of the same store hiding behind the partition; that this was about three or four hours after he got the first pint of whiskey. Nothing is said as to whether defendant went out and got this second bottle of whiskey or whether he sent for it by some other person. Charles Goldsmith, another witness for the state, testified that they went to Beeler's restaurant where they drank a pint of whiskey; that this was long after the time the defendant gave the first pint of whiskey to Mattison; that it was along about dinner time that Ross and Mattison went into the back room of the music store; that they went up to Beeler's a little while after Fraser gave Mattison the whiskey, and that Ross came in there; that Mattison had the whiskey at that time, but that Ross did bring some whiskey in about one or two o'clock at Beeler's. Fraser, the defendant, testified that he had but little acquaintance with Mattison. He stated that he gave Dink Ross money to buy some whiskey. "Q. How did this conversation come up about whiskey, with Mattison? A. He asked me if I could do anything. Q. What did you tell him? A. I told him I didn't know whether I could or not. Q. You knew you couldn't, didn't you? A. Not at this time, no, sir. Q. What did you say to him about it? A. I told him I might try. Q. What did you do then? A. He gave me six-bits and I went out and tried. Q. Where did you go to? A. I went outside. Q. Where to? A. I met Dink Ross and gave the money to him. Q. Where did you meet Dink Ross? A. Out on the street. Q. Whereabouts on the street? A. Well, it was along about Beeler's. Q. Where did Dink go to? A. I don't know where he went. Q. Did he bring back whiskey? A. Yes, sir. Q. Where did he bring this whiskey back to? A. Me. Q. Yes? A. Up at Beeler's. Q. Bring it to Beeler's? A. Yes, sir. Q. Did you stay and watch for him to bring it back? A. No, sir. Mattison and I and this other fellow went up there. Q. You gave it to Mattison at Beeler's? A. No, sir. Q. Where did you give it to him? A. I gave it to him in Beeler's." Later on, in his testimony: "Q. How come Dink to come back to Beeler's restaurant? A. Well, I told him I would meet him there." Again: "Q. Dink gave this whiskey to you, did he? A. I don't know whether he did or not; I don't remember whether Mattison took hold of it first, or me. Q. You don't remember whether you gave it to him or not? A. No, sir! just like a crowd around drinking; I would not swear that I got it and gave it to Mattison or Mattison reached and got it."

From the defendant's own admissions, as will be seen, he first stated that he did not deliver the bottle of whiskey to Mattison at Beeler's but in Beeler's. After he had been further examined, when the question was again brought to his consideration, he qualified his first statement by expressing a doubt, or uncertainty, as to whether he delivered the bottle of whiskey to Mattison or Mattison reached and got it. It is a well-established rule that when an admission against interest is offered in evidence the whole statement must be considered together, but the triers of the fact are at liberty to give credence to the statements which are against the interests of the declarant, and it does not follow that after an admission has once been shown to have been made that a subsequent qualification will annul the probative force of the previous admission. That is a question for the jury to take into consideration and ascertain whether under all the circumstances in the case what he said in favor of himself was true or untrue, but the presumption is that what he said against himself is true because said against his own interest. As to whether defendant's first statement of the transaction as to delivery to Mattison was...