State v. Hall
| Decision Date | 07 February 1910 |
| Citation | 125 S.W. 229,141 Mo.App. 701 |
| Parties | STATE OF MISSOURI, Respondent, v. MONT HALL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.
Case reversed and defendant discharged.
John T Sturgis for appellant; W. Cloud of counsel.
(1) This proceeding having been commenced by indictment of a grand jury and that mode of procedure adopted, it was not competent to change the same to the other mode of an information by the prosecuting attorney. Laws of 1901, p 138; State v. Harvey, 214 Mo. 403; State v Gieseke, 209 Mo. 331. (2) "The burden is on the State to establish such facts as would arrest the running of the statute." State v. Moore, 67 Mo.App. 338; State v. Myers, 68 Mo. 266; State v Snyder, 182 Mo. 462; State v. Stephens, 70 Mo.App. 554; State v. Small, 31 Mo. 197. (3) Each sale of intoxicants constitutes a separate offense. State v. Andrews, 27 Mo. 267; Springfield v. Ford, 40 Mo.App. 586; Kansas City v. Muhlback, 68 Mo. 638; 23 Cyc. 211. (4) Where an indictment charges two or more offenses an acquittal of one on the merits is a complete bar to a second prosecution for such offense. The same rule applies to separate counts of an indictment as to separate indictments. State v. Bruffey, 75 Mo. 389; State v. Owen, 78 Mo. 367; Constitution of Mo., Art. 2, sec. 23; State v. Newkirk, 49 Mo. 472; State v. Moore, 156 Mo. 135. (5) It is only for the offense of which defendant is convicted that an arrest of judgment or reversal for error in law permits a second trial. Where the acquittal is on the merits it matters not whether the indictment is good or bad. R. S. 1899, sec. 2373; State v. Hoffman, 136 Mo. 58. (6) The State was allowed to prove all the sales which it had proven on the former trial--and then some. This is error. State v. Wilson, 39 Mo.App. 184; State v. Stephens, 70 Mo.App. 554.
Thomas M. Saxton, Ex-Prosecuting Attorney, Jas. H. Pratt and Horace Ruark for respondent.
(1) If the Statute of Limitation does not run during the pendency of a defective indictment, then none of the sales proven by the State were barred by the statute. When the former case was reversed, it left the court free to proceed as though the case had never been tried, and the State was rightly permitted to introduce new evidence. State v. Newkirk, 49 Mo. 472; 10 Current Law, 237; 12 Cyc. 646; Booth v. United States, 154 F. 836; Dolans v. United States, 69 C. C. A. 287. (2) When an indictment is quashed, set aside or reversed, the time during which it was pending is not to be computed as part of the time of the limitation prescribed for the offense. State v. English, 2 Mo. 182; R. S. 1899, sec. 2422; State ex rel. v. Primm, 61 Mo. 166; State v. Owen, 78 Mo. 368; State v. Hansbrough, 181 Mo. 352; 12 Cyc. 258. (3) The court committed no error in not requiring the State to elect upon one particular sale. Storr v. State, 3 Mo. 10; State v. Fletcher, 18 Mo. 426; State v. Small, 31 Mo. 197; State v. Heinz, 45 Mo.App. 403; State v. Stephen, 70 Mo.App. 554. (4) "It is the accepted doctrine that in order for a former trial and acquittal or conviction to be revoked on a plea of former jeopardy, it is essential that the former conviction or trial must have been upon a sufficient indictment or information." State v. Keating, 122 S.W. 701; State v. Manning, 168 Mo. 430; State v. Wilson, 39 Mo.App. 187.
At the October term, 1906, of the Newton Circuit Court, the grand jury returned an indictment against the defendant, charging him with violating the Local Option Law. The indictment was in four counts. The first count alleged the sale of intoxicating liquors on the 6th of October, 1906; the second count, on the 5th day of October, and the third and fourth counts, on the 3rd day of October.
The trial was had before a jury, resulting in a conviction on the first count, and a punishment of a fine of $ 1000 assessed, and an acquittal on the second, third and fourth counts.
The defendant appealed to the St. Louis Court of Appeals, and that court held the indictment insufficient, and discharged the defendant. The case is reported in the 130 Mo.App. 170, 108 S.W. 1077.
After the discharge of the defendant, the prosecuting attorney, on the 17th day of April, 1908, filed an information in said circuit court, charging that the defendant, on the 6th day of October, 1906, sold intoxicating liquors, to-wit: whisky, wine and beer, without any legal authority, and further charging that the Local Option Law was in force in said county at the time of said sale, and also alleging the former indictment and the proceedings thereon.
The allegations concerning the previous indictment were put in the information, for the purpose of showing that the statute of limitations had not run against the State. This information, we find to be in proper form. The defendant, in addition to the plea of "not guilty," filed a special plea of former acquittal.
After introducing testimony of the former indictment, the verdict and mandate of the court of appeals thereon, and after offering the evidence of the adoption of the Local Option Law, the plaintiff called three witnesses to give evidence touching the sale of intoxicating liquors by the defendant. Two of these witnesses testified that they purchased beer of the defendant in 1906, and a short time before the indictment was returned. These witnesses also testified that when the defendant was tried on the former indictment, they were witnesses and gave the same testimony. The other witness called by the State, testified that he purchased intoxicating liquors of the defendant in 1906. There was no evidence that he testified at the former trial.
The local option election was ordered on the second day of May, 1904, and to be held on the 8th day of June, 1904. There was offered in evidence in behalf of the defendant, a certified copy of an order made by the board of aldermen of the city of Granby, stating that one C. C. Hudson had been, by ordinance, duly appointed to take the census of the inhabitants of the city of Granby, and that said Hudson had made and filed his report and return as such census enumerator, showing that the city of Granby contained a population of 2557 inhabitants on said day, and declaring that the result of said census showed that the city of Granby had within its corporate limits, 2557 inhabitants, and ordered that the result be spread upon the records and journals of the city. This order was filed with the county clerk on the 4th day of June, 1904, and was accompanied by an affidavit of said Hudson as to the discharge of his duty as such census enumerator. The court excluded this testimony, and its action is assigned as error. In view of the final disposition made of this case, it will not be necessary to discuss the legality of the local option election in Newton county.
Section 2373, Revised Statutes 1899, reads: "When a defendant shall have been acquitted upon a trial, on the merits and facts, and not on any ground stated in the last section, he may plead such acquittal in bar to any subsequent accusation for the same offense, notwithstanding any defect in form or substance in the indictment upon which such acquittal was had."
On the former trial of the defendant, he was acquitted on three counts of the indictment, and convicted...
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