State v. O'Kelley

Decision Date24 March 1914
Docket NumberNo. 17763.,17763.
PartiesSTATE v. O'KELLEY et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Dade County; B. G. Thurman, Judge.

John O'Kelley and W. D. Fitch were convicted of violating the local option law, and the conviction was affirmed by the Court of Appeals, from which the appeal was transferred to the Supreme Court because of a dissent on the ground that the opinion conflicted with former Supreme Court opinions. Conviction affirmed.

Defendants were convicted of a violation of the local option law, and sentenced each to 10 months in jail and to pay a fine of $300. They appealed to the Springfield Court of Appeals, where the judgment was affirmed. Judge Farrington dissented on the ground that the majority opinion is in conflict with State v. Hopper, 142 Mo. loc. cit. 481, 44 S. W. 272, and other cases there set out, and the appeal was transferred to this court. Defendants conceded that the local option law was in force in Dade county. They were partners in business as pseudo-druggists; neither had a license as a pharmicist; nor did they have a pharmacist in their employ. Dr. E. Spyers, a retired physician, having no license as a pharmacist, was employed by defendants. A sale was made of a quart of whisky to Joe Lindley, under what defendants claimed was a prescription written by Dr. Spyers, signed "E. S., M. D., No. ___ Date 4-15." The sale was made by O'Kelley in the store of defendants. The evidence is contradictory as to whether it was in April, July, or August, and as to whether defendant Fitch was present. There is no evidence to show that the sale was contrary to the wishes or instructions of the defendant Fitch. Among other instructions, the court told the jury that if defendants were partners in the store and engaged in the sale of liquor, and that O'Kelley was in general management of the business and sold liquor in violation of law, then both were guilty.

The record does not show that defendant was formally arraigned or that he entered a formal plea of any kind. The record proper shows that when the case was called for trial, the defendants appeared in person and by attorneys, and both sides announced ready for trial. The bill of exceptions shows that at the opening of the trial the information was read to the jury by the prosecuting attorney, and that counsel for defendants said, "No statement at this time, except we plead not guilty."

Howard Ragsdale, of Ash Grove, and J. O. Patterson, of Springfield, for appellants. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

ROY, C. (after stating the facts as above).

I. The defendants, not having a pharmacist's license, and having no licensed pharmacist in their employ, were not druggists in contemplation of the statute, and had no right to sell whisky on a prescription, or without it. State v. Workman, 75 Mo. App. 454; State v. Jordan, 87 Mo. App. 420. Such being the case, it is unnecessary to pass upon the sufficiency of the prescription.

II. The fact that defendant Fitch was not present when the sale was made does not entitle him to an acquittal. By the instruction given, the jury were required to find that the defendants were partners in the store and engaged in the sale of liquor. As above stated, neither of the defendants was a pharmacist, nor did they have a pharmacist in their employ, and every sale made by them was unlawful. The very nature of the partnership, so far as the sale of liquor was concerned, was a conspiracy to violate the law, and under these circumstances each was liable for a sale made by the other.

III. Appellants say that the failure of the record to show a formal arraignment and plea is fatal; although the defendants announced that they were ready for trial, and their counsel, when called on for a statement to the jury, said, "No statement, except we plead not guilty," and although they took part in the trial without protest or objection to such failure. In the short period of our history as a territory and a state, criminal procedure has undergone a transformation which may well be called a revolution. By the common law a person charged with a felony was not permitted to have a copy of the indictment, nor was he allowed to have the assistance of counsel, except occasionally to argue a point of law. When arraigned at the bar, if he willfully refused to plead, he could be sentenced, when the charge was treason, as on a conviction. In other cases he could be sentenced and imprisoned "strong and hard." 4 Blackstone, p. 325. On his trial neither he nor his wife could testify in his defense. He was not allowed a bill of exceptions, and hence could not be heard in the appellate court on any point involved in the trial save the exceedingly limited number shown by what is known as the record proper.

In 1831 a judgment of conviction in a capital case (Samuels v. State, 3 Mo. 68) was affirmed without the consideration of any question arising on the evidence or instructions. Such being the case, this court was able to consider only the mere stage on which the great drama of the trial had been enacted. It could not know from the record, the age character, or the condition in life of the accused or of the deceased, and could know nothing of the guilt or innocence of the accused.

Humane and considerate judges, knowing and appreciating their own inability to see the true merits in criminal cases on appeal, were driven by the inequity and injustice of the law to the opposite extreme of looking vigilantly for errors of form and procedure having no reference to the substantial merits of the case. The Supreme Court of Massachusetts in 1807 in Commonwealth v. Hardy, 2 Mass. 303, said, "If even quibbling is at any time justifiable, certainly a man may quibble for his life."

We will now review the change wrought by our Legislature. As early as 1808 (1 Ter. Laws, p. 218, § 37) provision was made for furnishing the accused with a copy of the indictment and with the assistance of counsel. This right was further enlarged by Rev. St. 1825, p. 319, § 22. By the Revision of 1835, defendant was allowed to have his bill of exceptions. By the act of 1877, he and his wife were made competent witnesses in his behalf. Later on provisions were made for stenographic reports of the trial; and, where the accused is not financially able to pay for a copy of the stenographic report, it is furnished to him free. On appeal, even though the defendant files no assignment of errors or brief in this court, it is made our duty, by section 5312, Rev. Stat., to examine the record for errors. State v. Maggard, 250 Mo. 335, 157 S. W. 354. After performing that duty, though it be found that no error was committed on the trial, yet if the verdict was contrary to the law or evidence, it is our duty to reverse. Section 5284, Rev. Stat. And such duty extends to a case where the verdict is the evident result of the passion or prejudice of the jury. State v. Prendible, 165 Mo. 329, 65 S. W. 559.

On the other hand, the Legislature has been diligent in the work of destroying the old technicalities and quibbles which have been, from necessity, resorted to by the accused, and often by the court in his behalf. Gradually from 1825 our statute of jeofails in criminal cases, now section 5115, Rev. Stat., has been enlarged. Prior to 1879 it was confined to the curing of defects appearing on the face of the indictment. By section 1821 of the Revision of 1879, its curative power was extended so as to heal defects occurring in the proceedings not on the face of the indictment. As thus amended, it provides that the proceedings in a criminal case shall not be held invalid for the errors therein stated—

"nor for any error committed at the instance or in favor of the defendant; nor because the evidence shows or tends to show him to be guilty of a higher degree of the offense than that of which he is convicted; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant, upon the merits."

Section 5114, Rev. Stat., prevents the fatal effect of variance between the charge and the proof under the circumstances therein mentioned.

The Legislature has done its full duty. It has...

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    ...and P. H. Jackson for plaintiff in error. (1) The record does not show a formal arraignment. 16 C. J. 386, 387, sec. 711; State v. O'Kelley, 258 Mo. 345; State v. Witherspoon, 231 Mo. 706; State Harris, 225 Mo. 639; State v. Cisco, 186 Mo. 49; State v. Hunter, 181 Mo. 316; State v. Hopper, ......
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