State v. Grossman

• Decision Date: 24 November 1908
• Citation: 214 Mo. 233,113 S.W. 1074
• Parties: STATE v. GROSSMAN.
• Court: Missouri Supreme Court

113 S.W. 1074

214 Mo. 233

STATE v. GROSSMAN.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

1. CONSTITUTIONAL LAW (§ 208) — "CLASS LEGISLATION" — INTOXICATING LIQUORS — PROHIBITING SALES ON SUNDAY.

Rev. St. 1899, § 3011 (Ann. St. 1906, p. 1726), prohibiting any licensed dramshop keeper from keeping open his dramshop, or selling or giving away, or otherwise disposing of intoxicating liquors, on Sunday, applies to all licensed dramshop keepers, and is a general and not unreasonable regulation of the liquor traffic, and hence is not in conflict with Const. art. 4, § 53 (Ann. St. 1906, p. 197), prohibiting class legislation.

For other definitions, see Words and Phrases, vol. 2, pp. 1217, 1218; vol. 8, p. 7605.]

2. CONSTITUTIONAL LAW (§ 46) — STATUTES — VALIDITY — RIGHT TO RAISE CONSTITUTIONAL QUESTIONS.

One charged with violating Rev. St. 1899, § 3011 (Ann. St. 1906, p. 1726), prohibiting licensed dramshop keepers from selling intoxicating liquors on Sunday, cannot raise the question of the constitutionality of section 3013, prohibiting the granting of a dramshop license to one convicted of a violation of the statutes regulating dramshops, the two sections being separate, and section 3013 not being involved in the enforcement of section 3011.

3. INDICTMENT AND INFORMATION (§ 125) — STATUTORY OFFENSES — SUFFICIENCY.

Since a statute forbidding several things in the alternative creates but one offense, an information may charge one with the commission of all the acts conjunctively, but an information charging all the acts disjunctively is bad.

4. INDICTMENT AND INFORMATION (§ 125) — STATUTORY OFFENSES — SUFFICIENCY.

Rev. St. 1899, § 3011 (Ann. St. 1906, p. 1726), prohibiting any licensed dramshop keeper from keeping open, or selling or giving away intoxicating liquors, on Sunday, is a regulation of the liquor traffic on Sunday, and the offense denounced may be committed by any of the methods designated by the statute, and an information charging a violation of all the acts denounced by the statute must charge them conjunctively.

5. CRIMINAL LAW (§ 881) — TRIAL — VERDICT — SUFFICIENCY.

The verdict must be reasonably definite and certain and responsive to the issues.

6. CRIMINAL LAW (§ 971) — VERDICT — DEFECTS — MOTION IN ARREST OF JUDGMENT.

A defect in a verdict because it is uncertain and is not responsive to the issues may be reached by motion in arrest of judgment.

7. CRIMINAL LAW (§ 881) — VERDICT — SUFFICIENCY.

A verdict finding accused guilty of selling or otherwise disposing of liquor on Sunday, as charged in the information, which alleges that accused, a licensed dramshop keeper, sold, gave away, and disposed of intoxicating liquors on Sunday, is uncertain and is not responsive to the issue, because it leaves to mere conjecture as to which act accused is found guilty of committing.

Appeal from St. Louis Court of Criminal Correction.

Arthur Grossman was convicted of violating the Sunday law, and he appeals. Reversed and remanded.

This is an appeal by the defendant from a judgment of conviction in the St. Louis court of criminal correction convicting him, as a dramshop keeper, of selling, giving away, and otherwise disposing of intoxicating liquors upon or about his premises wherein such dramshop is located, on the first day of the week, commonly called Sunday. On August 28, 1905, the assistant prosecuting attorney filed in the St. Louis court of criminal correction an information containing two counts against the defendant. The first count charged that the defendant, having a license as a dramshop keeper, did sell, give away, and dispose of, in and about the premises wherein said dramshop is located, one pint of whisky to one Joe Bradshaw on Sunday. The second count charged that defendant kept open his dramshop upon said day. Both offenses were charged to have been committed on August 27, 1905. On August 29, 1905, the defendant entered his plea of not guilty. On September 12th there was interposed to the information filed a demurrer, as well as a motion to quash, alleging, among other things, the unconstitutionality of section 3011, Rev. St. 1899 (Ann. St. 1906, p. 1726), under which this prosecution was had. These motions were overruled. The defendant was put upon his trial before a jury upon October 12, 1905, which trial resulted in a verdict of guilty upon the first count and the assessment of his punishment at a fine of $75. There was a nolle prosequi entered as to the second count.

Timely motions for new trial and in arrest of judgment were filed and overruled, and an appeal was granted to the St. Louis Court of Appeals. Upon December 3, 1907, the St. Louis Court of Appeals, for the reason that a constitutional question was involved, certified the case to this court, on the ground that they were without jurisdiction to determine that question. The bill of exceptions does not preserve any of the evidence introduced at the trial. There was a judgment duly entered for the recovery of the $75, and from this judgment this appeal is prosecuted, and the record is now before us for consideration.

Charles Fensky, for appellant. Herbert S. Hadley, Atty. Gen., and Frank Blake, Asst. Att'y. Gen., for the State.

FOX, P. J. (after stating the facts as above).

The first proposition to which our attention is directed is the earnest insistence upon the part of learned counsel for appellant that section 3011, Rev. St. 1899 (Ann. St. 1906, p. 1726), is unconstitutional and void. Section 3011, upon which this judgment is predicated, provides: "Any person having a license as a dramshop keeper, who shall keep open such dramshop, or shall sell, give away or otherwise dispose of, or suffer the same to be done, upon or about his premises, any intoxicating liquors, in any quantity, on the first day of the week, commonly called Sunday, or upon the day of any general election in this state, shall, upon conviction thereof, be punished by a fine of not less than fifty nor more than two hundred dollars, shall forfeit such license, and shall not again be allowed to obtain a license to keep a dramshop for the term of two years next thereafter."

It is sufficient to say upon this proposition that in our opinion there is no merit in the contention of appellant that this section is unconsitutional and void. It in no way impinges upon section 53, art. 4, of the state Constitution (Ann. St. 1906, p. 197), which prohibits class legislation. This section applies to all persons of a class having dramshop licenses. No exceptions are made. It is general in its scope and universal in its application, so far as licensed dramshop keepers are concerned, and is therefore, under the uniform decisions of this court, to be classed as a general law. State v. Etchman, 189 Mo. 648, 88 S. W. 643; O'Connor v. Transit Co., 198 Mo. 622, 97 S. W. 150, 115 Am. St. Rep. 495; Taylor v. Transit Co., 198 Mo. 715, 97 S. W. 155. This section has been upon the statute for many years in this state, and many judgments of conviction for the violation of its provisions have been rendered by the courts of this state and affirmed by the appellate courts. In our opinion it is not an unreasonable regulation of the liquor traffic, as applicable to those who have procured the privilege of engaging in the business of that nature and character. In our opinion this section is constitutional and valid.

Counsel for appellant devotes a great deal of attention in his able and exhaustive brief in this case to section 3013, Rev. St. 1899 (...