State v. Heilman

• Decision Date: 08 January 1923
• Docket Number: No. 14528.,14528.
• Citation: 246 S.W. 622
• Parties: STATE v. HEILMAN.
• Court: Missouri Court of Appeals

246 S.W. 622

STATE v. HEILMAN.

No. 14528.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

"Not to be officially published."

J. W. Heilman was convicted of unlawful possession of intoxicating liquors, and appeals. Affirmed.

Robert M. Reynolds, of Marshall, for appellant.

William T. Bellamy, of Marshall, for respondent.

TRIMBLE, P.J.

An information was filed against defendant, under the provisions of section 6588, R. S. 1919, as amended by Laws, 1921, pp. 413, 414, wherein he was charged with unlawfully having in his possession four quarts of intoxicating liquors at a place other than defendant's private residence, to wit, at a brick store building used by defendant as a garage. By the verdict of a jury he was convicted and a fine of $500 assessed against him. Judgment being rendered on the verdict, he appealed.

The motion to quash the information is not before us for review, since it was not preserved in the bill of exceptions. State v. Finley, 193 Mo. 202, 91 S. W. 942.

The information is in the language of the statute, and that is sufficient. Section 6596, R. S. 1919. The statute (section 6588) as it was amended, says nothing about the liquors being "for beverage purposes" and hence such purpose now forms no element of the offense.

It is well settled that the several states acting under their police power have heretofore had full authority to regulate or prohibit the handling or use of intoxicating liquors. Mugler v. Kansas, 123 J. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205. The adoption of the Eighteenth Amendment and the enactment of the Volstead Act (41 Stat. 305) do not prevent the state legislating on the subject of prohibition except to the extent that no state can legalize that which the federal prohibitory laws declare illegal. It is only to this extent that such federal laws supersede state laws. State v. George (Mo. App.) 243 S. W. 948. The states did not, by reason of the Eighteenth Amendment, lose their power to deal with intoxicating liquors, except that they cannot authorize or sanction that which the amendment forbids. State v. Rhodes (Tenn.) 242 S. W. 642; National Prohibition Cases, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946. Consequently the state, through its Legislature, can enact prohibition legislation making certain acts in connection with the subject of prohibition crimes against the state which would not necessarily be crimes under a strict construction of the federal amendment. The state could pass any legislation in furtherance of prohibition but not in opposition to or destructive of it.

If there is an attempt to raise a constitutional question in the contention that the state legislation cannot be broader than the Eighteenth Amendment and make mere possession of intoxicating liquor an offense without regard to its purpose as a beverage, then such attempt was not made until in the motion for new trial. Under the authorities this is too late to raise such a question. State ex rel. v. Howe Scale Co., 277 Mo. 213, 210 S. W. 9; Carradine v. Ford, 195 Mo. App. 684, 187 S. W. 285; Lohmeyer v. St. Louis Cordage...