State v. Gamma

• Citation: 114 S.W. 619,215 Mo. 100
• Parties: STATE v. GAMMA.
• Decision Date: 15 December 1908
• Court: Missouri Supreme Court

114 S.W. 619

215 Mo. 100

STATE v. GAMMA.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

1. CRIMINAL LAW (§ 1019)—APPEAL—JURISDICTION —MISDEMEANOR CASES.

The Supreme Court has no jurisdiction of misdemeanor cases unless a constitutional question is involved.

2. CRIMINAL LAW (§ 912½)—NEW TRIAL— SCOPE OF REMEDY.

A motion for new trial, in a criminal case raises only matters excepted to at the trial.

3. CRIMINAL LAW (§ 972)—ARREST OF JUDGMENT —GROUNDS.

A motion in arrest of a judgment of conviction goes only to errors apparent on the face of the record which invalidate the pleadings or prevent the rendition of a judgment, and the evidence is not a part of the record for the purpose of such motion.

4. CRIMINAL LAW (§ 968)—MOTION IN ARREST —QUESTIONS RAISED—CONSTITUTIONAL QUESTIONS.

A constitutional question not having been raised by the instructions or preserved in the motion for new trial, it cannot be raised for the first time on motion in arrest in a criminal trial, and will be deemed waived.

5. CRIMINAL LAW (§ 1063)—APPEAL—PRESENTATION OF QUESTIONS FOR REVIEW—MOTION FOR NEW TRIAL.

In a criminal case a constitutional question must be preserved in the motion for new trial to be available on appeal to the Supreme Court, even if properly raised at the trial.

Appeal from Circuit Court, Madison County; Chas. A. Killian, Judge.

J. J. Gamma was convicted of unlawfully selling intoxicating liquor, and appeals. Appeal transferred to the Court of Appeals.

David M. Tesreau and John H. Chitwood, for appellant. Herbert S. Hadley and Frank Blake, for respondent.

BURGESS, J.

On March 23, 1908, the prosecuting attorney of Madison county filed an information in the circuit court of said county against the defendant, charging him with selling to George Gahring one pint of "Meth," a beverage containing alcohol, upon the 19th day of September, 1907, the local option law having previously been adopted in said county. Defendant filed a motion to quash the information, one of the grounds therefor being that on the 1st day of October, 1907, the grand jury of said county returned and filed in said court an indictment charging him with the same offense, and that the same was still pending and undisposed of. In support of his motion, the defendant offered record evidence of the indictment against him for the same offense charged in the information. The motion to quash was overruled, whereupon the defendant filed a motion or special plea denying the adoption of the local option law by said county, which motion the court ordered stricken from the files, upon motion made by the prosecuting attorney. The trial resulted in the defendant's conviction, his punishment being assessed at a fine of $300. Defendant's motions for a new trial and in arrest of judgment were overruled, and an appeal to this court granted him, he having invoked the Constitution in his motion in arrest.

The evidence, in substance, was as follows: J. M. White, clerk of the county court of Madison county, exhibited Record Book I, of Madison county, wherein was recorded the order for and result of the local option election held in said county upon March 8, 1904, and all proceedings taken in connection therewith. The record showed that at said election 825 votes were cast in favor of the adoption of the local option law, and 820 votes against it. George J. Gahring testified that the defendant had a little store on the Mine La Motte road in said county; that he, in company with Dick De Guire, went to said store on September 19, 1907, and that he ordered and paid for a bottle of "Meth" for De Guire, and a bottle of soda water for himself. Dick De Guire testified that he went with Gahring to defendant's store on September 19, 1907, and ordered a bottle of "Meth," and drank part of it. The bottle containing the beverage was something like a beer bottle in shape. He did not feel any intoxicating effects from the little that he drank. Emmett Williams, prosecuting attorney, testified that he had had a conversation with the defendant in the summer of 1907, and told him to quit selling "Meth" for the reason that it contained alcohol. The defendant replied that it contained less than 2 per cent. alcohol, but promised the prosecuting attorney that he would quit selling it. In the summer of 1907 Williams had the defendant's place raided, when a large quantity of "Meth" was secured. It was packed in cases like beer cases. Some of the bottles of "Meth" secured at the time were exhibited at the trial and identified by the witness. These were labeled, "Meth, a nonintoxicant, pure malt liquor, containing less than two per cent. alcohol. The William J. Lemp Brewing Company, St. Louis, U. S. A." Witness also testified that he purchased some bottles of "Meth" from the defendant, who told him that he got it from the Lemp Brewing Company. H. E....