State v. Keiter, 50890

• Decision Date: 11 October 1965
• Docket Number: No. 1,No. 50890,50890,1
• Parties: STATE of Missouri, Appellant, v. Reba KEITER, Respondent
• Court: Missouri Supreme Court

Page 399

394 S.W.2d 399

STATE of Missouri, Appellant, v. Reba KEITER, Respondent.

No. 50890.

Supreme Court of Missouri, Division No. 1.

Oct. 11, 1965.

Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., for appellant.

Davis & Hannegan, Ervin D. Davis, St. Charles, for respondent.

HOUSER, Commissioner.

This is a civil action brought by State of Missouri by its Supervisor of Liquor Control under the provisions of Sec. 311.840, V.A.M.S., to declare contraband certain intoxicating liquors seized by the agents of the state and to order the same sold. Submitted to the circuit court on the pleadings the finding was for defendant. It was adjudged that the state take nothing by its petition and that the property seized be released to defendant. The state appealed. We have jurisdiction because State of Missouri is a party to the action. Art. V, Sec. 3, Mo.Const.1945, V.A.M.S. We affirmed the judgment on the first argument of the appeal but later sustained the state's motion for a rehearing. The cause has been briefed and argued a second time.

All allegations of fact contained in the petition as amended were admitted by defendant. The following is a summary of the facts thus conceded: Defendant operates a private club in St. Charles County. No license has been issued under the liquor control law to defendant or any other person for the sale of intoxicating liquor at the club premises. On August 10, 1962 three agents of the department of liquor control and a state highway trooper entered the club premises and there purchased from defendant 6 highballs made with intoxicating liquor. On the same day two of the agents and the county sheriff arrested defendant at the club premises for the sale of intoxicating liquor without a license. At the time of the arrest two of the agents seized 4 cases of bourbon whiskey, 1 case of wine and 92 bottles of assorted liquors, wines, whiskeys, gin, etc. The intoxicating liquor seized 'was possessed and stored for sale' at the club premises.

The state relies upon and contends that the liquor seized should have been declared contraband and forfeited under the provisions of Sec. 311.810(2), V.A.M.S. On the first argument of this appeal the state relied upon Sec. 311.050 as the basis for its theory that the defendant's storage and keeping of the intoxicating liquor was unlawful and that the liquor is contraband. On rehearing the state relies upon Sec. 311.740(1) as the basis for its contention that defendant's storage and keeping of intoxicating liquors was unlawful.

Section 311.810(2) declares '[a]ll intoxicating liquor unlawfully * * * stored, [or] kept, * * * contraband, * * *' and provides that '* * * no right of property shall be or exist in any person * * * owning, furnishing or possessing any such * * * liquor * * *; but all such intoxicating liquors * * * shall be sold upon an order of the court and in the manner provided in this chapter * * *.'

Section 311.740(1) provides, in part: 'Any room, * * * building, * * * structure or place of any kind where intoxicating liquor is * * * kept for sale or bartered, in violation of this law and all intoxicating liquors and all property kept and used in maintaining such a place * * * is hereby declared to be a public and common nuisance, and any person who maintains or assists in maintaining such public and common nuisance shall be guilty of a misdemeanor * * *.'

Under the admitted facts intoxicating liquor was possessed and stored for sale at the defendant's place. This is the same as 'kept for sale' as that term is used in Sec. 311.740(1). Under the admitted facts defendant, an unlicensed person, sold 6 highballs of intoxicating liquor at the place of business operated and managed by her in St. Charles County known as the Lake Village Yacht Club. The operation, management and maintenance of this place, the keeping of intoxicating liquor for sale, and the actual sale there of intoxicating liquor by the unlicensed defendant, all in violation of Sec. 311.740(1), constituted the premises and the liquor a public nuisance, made of defendant a misdemeanant and amounted to an unlawful storing or keeping of intoxicating liquor for sale in violation of law within the meaning of the contraband statute, Sec. 311.810(2). Under that section the liquor seized is contraband and must be ordered sold as in such cases made and provided.

Appellant claims that the evidence is insufficient to support this result. Specifically, appellant objects that the admissions of fact do not indicate that defendant maintained a nuisance on these premises. She says that maintaining a nuisance denotes continuous or recurrent acts approaching permanence, and urges that the evidence does not prove that intoxicating liquor was sold more than once.

Repeated sales were not necessary to justify a finding of unlawful storage and keeping of intoxicating liquor on the basis that a public and common nuisance was being maintained. The surrounding circumstances warrant the inference that the sale of 6 highballs on this single occasion was one of the ordinary and usual incidents of the business conducted...