State v. Gillespie
| Decision Date | 16 February 1904 |
| Parties | STATE OF MISSOURI, Respondent, v. GILLESPIE, Jr., Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene Criminal Court.--Hon. J. J. Gideon, Judge.
Judgment reversed and cause remanded.
Hamlin & Mason for appellant.
State ex rel. v. Scott, 96 Mo.App. 620; State v Ferguson, 152 Mo. 92; State v. Punshon, 133 Mo 44; State v. Warford, 106 Mo. 55; State v. Riley, 4 Mo.App. 392.
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 seventy-five or eighty feet long; that there was a partition in the building cutting it into two rooms, with an opening in the partition of about six 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; that he and one O'Bannion, on a Sunday within the year next before the filing of the indictment, entered the wareroom through this side door; that he halted in the back room but O'Bannion went through the opening into the front room to the bar and returned in a few minutes; that he and O'Bannion then went into the alley and O'Bannion had a bottle of whiskey in his pocket or under his coat, and that each took a drink from the bottle. He further testified...
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