State v. Hall
| Decision Date | 17 March 1908 |
| Citation | 108 S.W. 1077,130 Mo.App. 170 |
| Parties | STATE OF MISSOURI, Respondent, v. HALL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.
REVERSED.
Judgment reversed and defendant discharged.
John T Sturgis and A. D. Bennett for appellant.
(1) An indictment is not good unless it charges in detail the facts necessary to put the local option law in force, or makes the general charge that such law "has been adopted and is in force within the county on the day on which the offense is charged." State v. Searcy, 39 Mo.App. 407; State v. Prather, 41 Mo.App. 458; State v Hutton, 39 Mo.App. 415; Kelly's Criminal Law, secs 1084-5; Sherwood Criminal Law, pp. 836, 742; State v. Dugan, 110 Mo. 143. (2) It is one of the tests of the insufficiency of an indictment that every allegation may be taken to be true and yet the defendant be guilty of no offense. State v. Beugsch, 170 Mo. 81; State v. Broeder, 90 Mo.App. 156; State v. Thieraup, 167 Mo. 429; State v. Hogan, 164 Mo. 654; State v. Drumm, 156 Mo. 216. (3) A defect in an indictment is not waived by failure to move to quash or even by failure to move in arrest of judgment. State v. Nunley, 185 Mo. 112; State v. Hogan, 164 Mo. 654; State v. Stowe, 132 Mo. 203. (4) It was necessary to prove that the local option law was in force in Newton county at the time of the alleged sale of liquors and nothing less than a positive and specific charge of this fact will suffice in the indictment. State v. Phelan, 159 Mo. 122; State v. Saunders, 63 Mo. 482; State v. Hubbert, 170 Mo. 346; State v. Kelly, 170 Mo. 151.
Thomas M. Saxton, Prosecuting Attorney of Newton county, for respondent.
The indictment is sufficient. It alleges the adoption of the local option law, that it was put in force, and the sale of intoxicating liquors, and is in the form given by Mr. Kelley in his work on Criminal Law, sec. 1084, page 757. State v. Hitcheck, 124 Mo.App. 106. When the State made proof of the adoption of the local option law in July, 1904, and proved a sale within the territory covered, it made a prima-facie case. If defendant claimed that the law was repealed by a subsequent election, the burden was upon him to prove such fact. Loveless v. State, 40 Tex. Crim. 22, 49 S.W. 892. No indictment shall be deemed to be invalid for want of an averment not necessary to be proved. Nor for any defect which does not prejudice the substantial rights of the accused. R. S. 1899, sec. 2535. State v. Brown, 181 Mo. 230; State v. Lehman, 182 Mo. 450; State v. Craig, 79 Mo.App. 412.
--Defendant was convicted in the circuit court of Newton county of the offense of selling intoxicating liquors in violation of the local option law. He appeals to this court, insisting the indictment against him is insufficient in that it fails to charge the local option law to have been in force in the county at the date he is alleged to have sold the liquor in violation thereof. Now under the established law in this State, the pleader may charge in the indictment, in detail, all of those facts necessary to evince that the local option law had been adopted in a particular county on a particular day, or he may dispense with the detailed allegation of fact with respect thereto by charging that the law had been adopted at a particular time and was in force within the county on the date on which the offense is charged. It is certain that the indictment must contain pointed and specific allegations with respect to this matter in one form or the other, as indicated, for it is material to both allege and prove that the law had been adopted and was in force on the date on which the offense was committed, otherwise nothing would appear to disclose that the law had been violated. [State v. Searcy, 39 Mo.App. 393, 407; State v. Prather, 41 Mo.App. 451, 458; State v. Hutton, 39 Mo.App. 410, 415; State v. Dugan, 110 Mo. 138, 143, 19 S.W. 195; Kelley's Criminal Law (1892), secs. 1084, 1085; Sherwood, Criminal Law, pp. 836, 742.]
The indictment in this case fails to allege in detail the essential facts indicating the adoption of the local option law in Newton county at any time. It is charged however, that on the 8th day of July, 1904, the local option law, properly identifying it, "had been adopted and was in force as the law of the State within the county of Newton," etc. In a subsequent portion thereof, the indictment charges the defendant, in appropriate terms, with having violated the law by selling certain intoxicating liquors on the 6th day of October, 1906, in said county, etc. It will appear there is nothing in the indictment which pointedly charges the local option law was in force in Newton county at the time the sale was made; that is, at the time the defendant is alleged to have offended against it, October 6, 1906. The allegation as above stated is that the law had been adopted and was in force on the 8th day of July, 1904. Nothing appears charging that the law continued to be in force until the 6th day of October, 1906, when defendant is alleged to have violated its provisions. Now if it were charged that the law was adopted on July 8, 1904, then this status having been established by competent allegation, in the absence of something appearing to the contrary, the presumption would be indulged that the law was in force on October 6, 1906, for the courts judicially know that if the law was adopted on July 8, 1904, it would essentially continue in force as a law of the State in that county for a period of four years, for such is the provision of section 3033, R. S. 1899, section 3033, Mo. Ann. St. 1906. So much has been ruled, as we understand it, in the case of State v. Foreman, 121 Mo.App. 502, 508, 97 S.W. 269. No such allegation appears, however. The allegation is that the law "had been adopted on July 8, 1904," and was in force...
To continue reading
Request your trial