State v. Hoelscher

• Decision Date: 05 November 1924
• Docket Number: No. 18734.,18734.
• Citation: 267 S.W. 426
• Parties: STATE v. HOELSCHER et al.
• Court: Missouri Court of Appeals

267 S.W. 426

STATE v. HOELSCHER et al.

No. 18734.

St. Louis Court of Appeals. Missouri.

November 5, 1924.

Rehearing Denied December 17, 1924.

Error to Circuit Court, Monroe County; A. W. Walker, Special Judge.

"Not to be officially published."

Bess Hoelscher and another were convicted of possession and sale of intoxicating liquor, and named defendant brings error. Affirmed.

J. H. Whitecotton, of Paris, and E. W. Nelson and Lewis O'Connor, both of Hannibal, for plaintiff in error.

Roy Hamlin and Ben Ely, Jr., both of Hannibal, and Oliver W. Nolen, of Paris, for the State.

DAUES, J.

Plaintiffs in error were indicted by the grand jury in Marion county in two counts for alleged possession and sale of intoxicating liquor. On a change of venue the cause was sent to Monroe county, where both defendants, in a joint trial, were convicted; Eskridge on two counts and Hoelscher on the first count. The state at the beginning of the trial entered a nolle prosequi as to the second count against defendant Hoelscher. The case reaches us on a writ of error sued out by the plaintiffs in error, hereafter referred to as the defendants. Defendant Eskridge has since died, and on proper suggestion the cause has abated as to him. This leaves for our consideration the cause as same stands against Bess Hoelscher.

Because of the points involved it becomes pertinent to briefly outline the history of the case before trial. Defendants were indicted at the January term, 1924, of the Hannibal court of common pleas. The venue was duly changed to the circuit court of Monroe county. The transcript of the record and proceedings had in the common pleas court were duly filed with the circuit clerk of Monroe county. Defendants next disqualified the judge of that circuit, and the regular judge of the Ninth judicial circuit was called in as a special judge to try the case. In April of that year the defendants, having theretofore pleaded not guilty, asked leave to withdraw their former plea of "not guilty" and to file a plea in abatement. This the court denied. In the brief of defendants the point is made that the record for the common pleas court does not show that the judge of the Hannibal court of common pleas ordered a grand jury summoned for the term at which this indictment was returned, and that the minute book of that court does not contain such order.

The evidence is brief and succinct. The state produced witnesses who testified that one Fred Ward went to a place occupied by defendant Hoelscher in Hannibal, Mo., and where she conducted a restaurant; that he went upstairs in this building, which was under the control of defendant Hoelscher, to a certain room, where he was admitted by defendant Hoelscher; that defendant Eskridge, then in her employ, or certainly under her direction or with her consent, sold Ward a half pint of whisky for $1.25. It appears that Eskridge went into an adjoining room to secure the liquor before same was handed to the witness. The flask of liquor was retained by this witness, and competent evidence tends to show that this same liquor passed through the hands of responsible persons—a grand juror, the prosecuting attorney, and the sheriff of Monroe county, and finally reached the courtroom as evidence. The liquor was tested by a pharmacist and found to contain 42½ per cent. of alcohol by volume. Defendant Hoelscher did not undertake to testify in the case. It is unnecessary to recite the facts further, as there can be no genuine debate on the question as to whether there was ample proof to submit the case to the jury as against this defendant under the averment of the indictment charging illegal possession of liquor, and without further discussion we rule that defendants' demurrer to the evidence was correctly decided.

This leaves for our consideration these questions: First, the court's action on the plea in abatement; and, secondly, whether the exhibit, the flask of whisky, was improperly admitted in evidence. The court below shared the view that the plea in abatement was untimely and should not be allowed to be filed at that stage of the proceedings, and we cannot rule that the court abused its discretion, under all the facts and circumstances of this case, in refusing...