State v. Gillespie

• Decision Date: 16 February 1904
• Citation: 104 Mo. App. 400,79 S.W. 477
• Parties: STATE v. GILLESPIE.
• Court: Missouri Court of Appeals

79 S.W. 477

104 Mo. App. 400

STATE v. GILLESPIE.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

DRAMSHOPS—SUNDAY CLOSING—PROSECUTING ATTORNEYS—ERRONEOUS ARGUMENT —EVIDENCE—VERDICT.

1. In a prosecution for keeping open a dramshop on Sunday, evidence held sufficient to justify a conviction.

2. Where, in a prosecution for keeping open a dramshop on Sunday, the prosecuting attorney in his closing argument, referring to defendants, stated, "They can afford to pay a fifty-dollar fine and then go ahead and sell liquor on Sunday, as they will do," to which defendants objected and requested a reprimand and an instruction that the jury should not consider such statement, which was refused, such argument was ground for reversal.

Appeal from Criminal Court, Greene County; Jas. J. Gideon, Judge.

P. H. Gillespie, Jr., was convicted of keeping open a dramshop on Sunday, and he appeals. Reversed.

Hamlin & Mason, for appellant. Roscoe Patterson, for respondent.

BLAND, P. J.

Coleman C. Nee and Patrick H. Gillespie, Jr., were, at the July term, 1902, of the Greene county criminal court, indicted by the grand jury for keeping open their dramshop, in the city of Springfield, on the first day of the week, commonly called Sunday. Nee was acquitted, but Gillespie was convicted; from his conviction he has appealed to this court. At the close of the state's evidence he asked a peremptory instruction directing the jury to acquit him. The refusal of this instruction is assigned as error.

The evidence for both the state and the defendants shows that Nee and Gillespie kept a dramshop in the city of Springfield. To prove this fact the state was not required (as contended by appellant) in this proceeding to show that they had a license as dramshop keepers; all that was essential to a conviction was to show that they kept a dramshop, and kept it open on some Sunday within one year next before the filing of the indictment. To show the fact of keeping open their dramshop on Sunday, the state offered but one witness, M. V. Massey. He testified, in substance, that the building in which the dramshop was kept was 75 or 80 feet long; that there was a partition in the building, cutting it into two rooms, with an opening in the partition of about 6 feet; in the front room was the bar; the back room was used as a wareroom; there was an alley back of this building, and near the alley, in the side of the building, was a door, which afforded an entrance into the wareroom;...