State v. O'Kelley
| Decision Date | 11 December 1906 |
| Citation | 98 S.W. 804,121 Mo.App. 178 |
| Parties | STATE OF MISSOURI, Respondent, v. O'KELLEY et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Henry C. Pepper, Judge.
AFFIRMED.
Judgment affirmed.
Howard Ragsdale and Charles F. Newman for appellants.
Defendant's motion to quash should have been sustained. State v Whitaker, 75 Mo.App. 184; State v. Hatfield, 40 Mo.App. 358; State v. Humble, 34 Mo.App. 343; State v. Wilkson, 36 Mo.App. 373; State v Harris, 30 Mo.App. 82; State v. Sartin, 66 Mo.App. 626; State v. Feagan, 70 Mo.App. 406; State v. Ransberger, 42 Mo.App. 466, 474; State v Ransberger, 106 Mo. 138; R. S. 1899, sec. 2749.
(2) The court should have sustained the objection of defendants to the question answered by witnesses, Baker and Poindexter, with reference to defendants having plead guilty to selling Weneda in the Federal court at Joplin, and the error was not cured (as attempted by the court in this case) by the giving of instructions withdrawing such testimony from the consideration of the jury. State v. Fredricks, 85 Mo. 145; State v. Huchner, 83 Mo. 193; State v. Thomas, 99 Mo. 235; State v. Hopper, 71 Mo. 425; State v. Mix, 15 Mo. 153; State v. Woolf, 15 Mo. 168; State v. Schnieder, 35 Mo. 533; State v. Marshall, 26 Mo. 400.
R. H. Davis for plaintiff.
Appellants seriously contend that the court committed error in permitting the following questions to be asked Witness Baker, on cross examination. Defendants put their character as law-abiding citizens in issue by the testimony of these witnesses, and it was proper for the purpose of determining their credibility and the source of their information upon which the knowledge of defendants' character was obtained. State v. Crow, 107 Mo. 347; State v. McLaughlin, 149 Mo. 33; State v. Parker, 172 Mo. 191; State v. Boyd, 178 Mo. 2; State v. Thornhill, 174 Mo. 370; State v. Brown, 181 Mo. 213.
--The information (omitting caption) is as follows:
The cause was appealed from a justice's court, where commenced, to the circuit court of Lawrence county, where on a trial de novo defendants were convicted and adjudged to pay a fine, from which judgment they appealed, after taking the usual steps to preserve their exceptions. In the circuit court, defendants moved to quash the information for the following reasons:
1. Defendants have filed no abstract or brief, but the record shows they saved an exception to the ruling of the court in overruling their motion.
In State v. Fletchall, 31 Mo.App. 296; State v. Ransberger, 42 Mo.App. 466; State v. McCarver, 47 Mo.App. 650; State v. Sweeney, 56 Mo.App. 409; State v. O'Connor, 58 Mo.App. 457, and State v. Maupin, 71 Mo.App. 54, it was ruled that an information filed by the prosecuting attorney before a justice of the peace is good, though not accompanied by the affidavit of himself or any other person. These rulings are not in conflict with State v. Bonner, 178 Mo. 424, 77 S.W. 463, State v. McGee and McGraw, 181 Mo. 312, 80 S.W. 899, and a number of decisions by the Courts of Appeals, holding that an information, filed by a circuit attorney in the circuit court, must be verified as the statutes (sections 2477, 2478, R. S. 1899) require, that is, by the oath of the prosecuting attorney, or the oath of some person competent to testify, or must be based upon the affidavit of some person, filed with the clerk of the court having jurisdiction of the offense for the use of the prosecuting attorney, or be deposited with him. The statute, in regard to filing such informations before a justice of the peace (sec. 2750, R. S. 1899) only requires that the information shall be made by the prosecuting attorney of the county in which the offense may be prosecuted under his oath of office. No verification is required. This dissimilarity in the statutes regulating the proceedings in justices' and circuit courts account for the apparent variance in the rulings of the courts in regard to the verification of informations charging criminal offenses. The motion to quash was properly overruled.
2. The evidence shows that the beverage sold was put up in quart bottles branded "Weneda," the bottles corked and sealed with a cap, and the cap branded "Springfield Brewing Company." The evidence for the State tends to show that the beverage "smelled like beer, tasted like beer" and, in the opinion of the witness, was a poor quality of beer.
August Deitrick, a witness for defendants, testified that he was president of the Springfield Brewing Company; that the Company put up "Weneda," and it was not a beer of any kind, was not a fermented or vinous liquor, that it could be made in three days, whereas it required three months to make lager beer; that it was not an intoxicant, was put up like soda water and contained only about one-tenth alcohol; that the Brewing Company paid the same government tax on "Weneda" that it paid on lager beer; that "Weneda" was put up specially to sell to the Indians in the Indian Territory; that after selling some in the Territory the Brewing Company was ordered by government officers not to sell it there.
Other witnesses for the defendants, testified that they had drank "Weneda"; that it did not taste like beer, was not intoxicating and, in their opinion, was not beer.
Over the objection of defendants, the court permitted L. H. Baker and J. R. Poindexter, witnesses, to testify on cross-examination, that they had heard that the defendants pleaded guilty, in the United States District Court at Joplin, Missouri, to selling "Weneda"...
To continue reading
Request your trial
-
Hudson v. Rodgers
... ... from the time it was made. [Allen v. Chouteau, 102 ... Mo. 309, 322, 14 S.W. 869.] The opinion of the Supreme Court ... of this State in the case just cited dealt with facts similar ... to those before us and declared the law to be that "a ... party making a proposal, or an ... ...