State v. Jaeger

• Decision Date: 12 June 1911
• Citation: State v. Jaeger, 138 S.W. 345, 157 Mo. App. 328 (Mo. App. 1911)
• Parties: STATE OF MISSOURI, Respondent, v. ERNEST JAEGER, Appellant
• Court: Missouri Court of Appeals

138 S.W. 345

157 Mo.App. 328

STATE OF MISSOURI, Respondent, v. ERNEST JAEGER, Appellant

Court of Appeals of Missouri, Springfield

June 12, 1911

Appeal from Newton Circuit Court.--Hon. Argus Cox, Judge.

Judgment reversed and cause remanded.

M. E Benton and John T. Sturgis for appellant.

(1) The evidence in this case clearly shows that the city of Granby had a population of over 2500 at the time of holding the local option election for Newton county, and yet that city was included and voted on the question along with the county.This would render the election void.State v. Webb,49 Mo.App. 407;State v. Mitchell,115 S.W. 1098;State ex rel. v. Cass County,137 Mo.App. 698.(2)The state did not prove the venue of the alleged sale.The evidence goes no further than to prove that the sale was within Newton county, but wholly fails to show that it was outside the limits of the city of Neosho.The venue of the offense is within the county and without the city and it is just as essential to prove that the sale was outside the limits of the city as inside the county.State v Prather,41 Mo.App. 451.(3) It is elementary law that a failure to prove the venue is fatal to the prosecution.State v. Hottle,104 Mo.App. 34;State v King,111 Mo. 576;State v. Schuerman,70 Mo.App. 518;State v. Hartnett,75 Mo. 251.(4) The indictment in this case is bad.It contains two inconsistent and repugnant counts, the one for selling intoxicants in violation of the Local Option Law, and the other in violation of the Dramshop Law.Both laws cannot be in force at the same time in the same county.The proof of the one offense necessarily disproves the other, and in fact the proof of one is a defense to the other.State v. Beam,51 Mo.App. 368;Ex parte Handler, 176 Mo. 383;Butler v. State, 25 Fla. 347.

Thomas M. Saxton for respondent.

MANN, Special Judge.Gray, J., concurs in result.Nixon, P. J., concurs in separate opinion.

OPINION

MANN, Special Judge.

From a conviction for violation of the Local Option Law in the circuit court of Newton countydefendant appealed to the St. Louis Court of Appeals, and the opinion was there rendered affirming the judgment.A motion for rehearing was filed and sustained.While the cause was pending in the St. Louis Court of Appeals upon rehearing, this court was created, and the cause transferred to this jurisdiction.COX, J., being disqualified to sit, E. P. MANN was elected to sit in the case as special judge.

Appellant's first contention is that since he was charged in three counts of the information with violation of the Local Option Law, and in the fourth count thereof with violation of the Dramshop Act, all under one verification, the counts are so inconsistent and contradictory that the verification amounts to no verification in fact, and that his motion in arrest, upon the authority of State v. Weyland,126 Mo.App. 723, 105 S.W. 660, should have been sustained.

In the Weyland case there were three counts in the information under one verification.The first count charged that defendant was a dramshop keeper, and that he sold liquor on Sunday.Another count charged that he sold liquor on Sunday, saying nothing about his being a dramshop keeper.The other count charged that he was not a dramshop keeper, and that he sold liquor on Sunday.The court held that the two counts expressly charging in the one that defendant was a dramshop keeper and in the other that he was not a dramshop keeper, were so flatly contradictory of each other that the truth of both could not consistently be verified under one general affidavit.It did not hold that the remaining count was improperly verified with either of the others under one oath.If it had so held the case would have been in point here, or had the prosecuting attorney charged in one count of the information under consideration that the Local Option Law was in force in Newton county, and in either of the others that it was not in force in such county, the case cited would have been in point.As the case stands, we find no such contradiction in the counts of this information as renders their verification under one oath inconsistent.

Appellant's contention that no proof of venue was offered or made by the state is correct.Only one witness testified to the sale, and he merely said that he bought wine on the day named of the defendant, in Newton county, Missouri, and paid for it.

The information alleges and the proof shows that local option was in force in Newton county outside of the city of Neosho, which had a population of over twenty-five hundred.The state entirely failed to prove, even inferentially, whether the sale was made within or without the limits of the operation of the law, and for this failure alone the cause must be reversed and remanded for a new trial.

Appellant further contends, however, that the undisputed record in this cause disclosed affirmatively the fact that the Local Option Law was never adopted in any part of Newton county, and therefore he cannot be convicted of its violation.It is necessary to dispose of that question here now.Touching appellant's contention in this behalf, it is not necessary to go into every detail further than to say that at the trial the state offered no proof of the publication of the notice of the local option election, but it did offer the record evidence, unchallenged as to its sufficiency or competency, to show that on May 2, 1904, a proper petition was filed with the county court for the election, and that on said May 2nd, by record entry, the court made all the necessary findings, including a proper finding that Neosho alone was the only city on that date in the county having a population of over twenty-five hundred, and ordered an election for all that part of the county outside the corporate limits of said city to be held June 8, 1904; that the election was held in conformity with the order, returns properly cast up by the county court, showing that all of the county outside of the corporate limits of Neosho, including the fourth-class city of Granby, had participated in said election, and that local option had carried by a majority of one hundred and forty-six votes, and showing due publication of the result thereof.In fact, appellant admits that local option was, or would have been lawfully adopted in said county on said June 8, 1904, but for the further following facts shown by the defendant by competent evidence at the trial.We might put it this way: That the record in this case contains an agreement that on June 3, 1904, thirty days subsequent to the order of the election by the county court, the city of Granby properly caused a census of its inhabitants to be taken under the provisions of section 3028,Revised Statutes 1899(now section 7239, R. S. 1909), and filed a proper statutory certificate thereof with the clerk of the county court on June 4, 1904, four days before the election, showing that said city of Granby had, according to said census, which is not attacked in any way, two thousand, five hundred and fifty-seven inhabitants.

Said census was also taken in conformity with the provisions of section 6300,Revised Statutes 1899(now section 9639, R. S 1909), which section requires all courts to take judicial notice of the population so shown by said census.Appellant contends that the case stated brings the facts and the law squarely within the term of State v. Mitchell (St. Louis Court of Appeals)115 S.W. 1098, never officially reported, and State ex rel. v. Cass County,137 Mo.App. 698, 119 S.W. 1010(Kansas City Court of Appeals); that the facts in the three cases are identical, and that upon the authority of the two cases mentioned the taking and filing of the census by the city of Granbyafter the date the election was ordered and before the day of election ousted the county court of jurisdiction to proceed with the election, receive and cast up the returns, and publish and declare that local option had carried within the territory inclusive of the corporate limits of the city of Granby, because the county court was bound to take judicial knowledge of the census of said city filed with the clerk four days prior to said election, and that the census showed the city, having then over twenty-five hundred inhabitants, could not be controlled in the premises by another than the vote of its own inhabitants.Appellant also contends that as the whole township of Granby outside as well as inside the city limits thereof voted at the same precinct, it could not then, and cannot now, be determined whether the proposition carried by excluding the vote of those residing within the city limits, and the whole election fails.If I felt that the two cases cited correctly declare the law, there would be nothing to do but to sustain appellant's contention, hold that local option had never been legally adopted in Newton county, and reverse this case outright.Both the Mitchell case, and the Cass county case assume as the premise for all the deduction therein that a local option election under the statute is held for the purpose of determining whether intoxicating liquors shall be sold in all that portion of the county outside of the cities thereof having a legally ascertained population of over twenty-five hundred on the day of election.If I believed the statute intended that the legally ascertained population on the day of the election, or any day subsequent to the day the election was ordered, governed, then I would concede the reasoning and conclusions reached in these two cases to be sound.In my judgment, however, the opinion in each of those cases overlooks the plain provision, or at least meaning and intent of the Local Option Law, article III, chapter 22,Revised Statutes 1899...