State v. Katz Drug Co.
| Decision Date | 20 November 1962 |
| Docket Number | No. 31232,31232 |
| Citation | 362 S.W.2d 80 |
| Parties | STATE of Missouri, (Plaintiff) Respondent, v. KATZ DRUG COMPANY, a Corporation, (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Orville Richardson, Hullverson, Richardson & Hullverson, St. Louis, for appellant.
William J. Geekie, Pros. Atty., Sidney Faber, Asst. Pros. Atty., St. Louis, for respondent.
The appealing defendant was convicted of exposing to sale goods, wares and merchandise on Sunday, in violation of Section 563.720 and Section 563.730, RSMo 1949, V.A.M.S., in the Court of Criminal Correction. A fine of $50.00 was assessed.
The statutes under which the defendant was convicted are as follows:
'Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars.' (Section 563.720, RSMo 1949, V.A.M.S.)
'Section 563.720 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.' (Section 563.730 RSMo 1949, V.A.M.S.)
An appeal was taken to the Supreme Court because the defendant asserted that the statutes were unconstitutional. That court, having decided the same point in State v. Katz Drug Company, Mo.Sup., 352 S.W.2d 678, held that a constitutional question was no longer in the case and transferred it to this court.
The evidence presented by the State consisted of testimony of three members of the Meat Cutters Union. They testified that on Sunday, February 22, 1959, four of them went to a drug store, belonging to the Katz Drug Company, located at 6101 Easton Avenue, in the City of St. Louis. There they each made a purchase, and these purchases consisted of various items of merchandise. They bought 60 ballpoint pens and refills, a pair of child's pajamas, grass seed, and an electric frying pan. When all four had completed their purchases, they called a police officer and took the items that they had purchased to the police station.
One witness testified that the reason the Meat Cutters Union members did this was,
The defendant moved for a directed verdict at the close of the state's evidence, and upon it being overruled offered no evidence.
The first point urged here is that the statute is unconstitutional. This, despite the fact that the Supreme Court has stated that the statute is constitutional in an identical case against the same defendant. State v. Katz Drug Company, 352 S.W.2d 678, supra. As we stated, this case comes to us by transfer after the Supreme Court found that no constitutional question existed because of the above decision. Since the Supreme Court, in transferring the cause to this court, held that no constitutional question was present, no further consideration may be given to this point. State v. Higgins, Mo.App., 252 S.W.2d 641; State ex rel. Cornelius v. McClanahan, 221 Mo.App. 399, 278 S.W. 88; State v. Veltrop, Mo.App., 6 S.W.2d 638, 639.
The next point raised goes to the question propounded to the jury upon voir dire examination. The transcript of record states the following:
We find no substantial difference between this examination of the jury and the voir dire examination in State v. Katz Drug Company, 352 S.W.2d 678, l. c. 684, supra. There the jury was asked: 'Now, if I prove to your satisfaction and beyond a reasonable doubt that February 22, 1959, was a Sunday, and that the Katz Drug Company at their 8th and Washington store sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you that that is a violation of the law, will you convict?'
Counsel for the state asserts that the word 'enforce' as used in the question asked in this case has a different connotation than the word 'convict' used in the question asked in the first case. Although the difference...
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Brown v. Bryan
...or speculate as to their action in certain contingencies which may later occur or arise during trial.'' See also State v. Katz Drug Co., Mo.App., 362 S.W.2d 80, 82--83(2). In State v. Bolle, Mo., 201 S.W.2d 158, 159(2, 3), appellant's complaint of undue restriction in the voir dire was deni......
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State v. Goodman
...listed in 9A Mo.Dig., Criminal Law k824(1).' See also to the same effect: State v. Pennington, Mo.App., 392 S.W.2d 5; State v. Katz Drug Co., Mo.App., 362 S.W.2d 80; State v. Griffin, Mo.App., 289 S.W.2d 455; State v. Egan Mo.App., 272 S.W.2d 719; State v. Levan, Mo.App., 136 S.W.2d 1010; S......
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State ex rel. State Highway Commission v. Demarco
...no compensable interest in the commissioners' award, and the judgment is affirmed. STONE and TITUS, JJ., concur. 1 State v. Katz Drug Company, Mo.App., 362 S.W.2d 80, 82(1); State v. Higgins, Mo.App., 252 S.W.2d 641, 643(2); Beck v. Kansas City Public Service Co., Mo.App., 48 S.W.2d 213, 21......
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State v. Russo
...been held that § 546.070 (4), which is similar to Crim. Rule 26.02(6), has no application in a misdemeanor case (State v. Katz Drug Company, Mo.App., 362 S.W.2d 80, 83(4)), and that a defendant on appeal cannot successfully complain of a trial court's alleged error in failing to instruct th......