State v. Harp

• Decision Date: 17 March 1908
• Citation: 210 Mo. 254,109 S.W. 578
• Parties: STATE v. HARP et al.
• Court: Missouri Supreme Court

109 S.W. 578

210 Mo. 254

STATE v. HARP et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

1. CRIMINAL LAW—APPEAL—WAIVER OF OBJECTIONS NOT MADE IN LOWER COURT.

Where defendants in a prosecution for violating the local option law fail to object in the lower court to the publisher's certificate of the publication of notice of the result of the local option election, because, through a clearly clerical error, one date of publication was stated to be "September," instead of "October," they cannot urge the objection on appeal.

2. INTOXICATING LIQUORS—CONSTITUTIONALITY OF ACTS—LOCAL OPTION.

The local option law (Rev. St. 1899, c. 22, art. 3; Ann. St. 1906, pp. 1733-1740) is constitutional.

Appeal from Circuit Court, Stone County; John T. Moore, Judge.

J. T. Harp and another were convicted of violating the local option law, and appeal. Affirmed.

G. W. Thornberry and J. W. George, for appellants. The Attorney General and Frank Blake, for the State.

GANTT, J.

On September 10, 1906, the prosecuting attorney of Stone county filed an information, duly verified, against the defendants, charging that in September, 1906, at said county, they unlawfully sold and disposed of intoxicating and fermented liquors in violation of the act of the General Assembly of Missouri approved on the 5th day of April, 1887, commonly known as the "Local Option Law," being article 3 of chapter 22 of the Revised Statutes of 1899 (Ann. St. 1906, pp. 1733-1740) of said state, which had been adopted and was in force within the county of Stone. In due time the defendants were duly arraigned and entered their plea of not guilty. A jury was waived, and the cause was tried to the court at the October term, 1906, and they were found guilty and their fine assessed at $300 each. From that conviction they have appealed to this court.

The only ground upon which this court has jurisdiction of the cause is that defendants challenge the constitutionality of the local option law. The evidence tended to show that along about the 1st of September, 1906, the defendants were running what was known as the "Crane Amusement Club" at the town of Crane, in the county of Stone. A witness testified that he bought $1 worth of coupons from the defendants, for which he obtained beer. The clubhouse consisted of two rooms, with a partition about the middle. There was a door in the partition, which was locked, and the witness knocked on this door and was admitted into the inner room, in which there was located a regular bar such as is ordinarily found in a barroom or dramshop. He found the two defendants and some others in this back room after he had been admitted. He presented his coupon and received beer therefor. Both the defendants were in there, and were dispensing liquors to their customers. The records of the county court of Stone county were offered in evidence, by which it appeared that on August 7, 1905, a petition signed by over one-tenth of the qualified voters of Stone county was filed in the county court, praying for an election to determine whether or not intoxicating liquors should be sold in said county. An order was made by the court in due form directing that a special election be held on September 5, 1905; notice of the election...