State v. Kramer

• Decision Date: 13 December 1920
• Docket Number: No. 13686.,13686.
• Citation: 206 Mo. App. 40,226 S.W. 643
• Parties: STATE v. KRAMER.
• Court: Missouri Court of Appeals

226 S.W. 643

206 Mo. App. 40

STATE v. KRAMER.

No. 13686.

Kansas City Court of Appeals. Missouri.

December 13, 1920.

Appeal from Circuit Court, Adair County; J. A. Cooley, Judge.

Jesse G. Kramer was convicted of violations of the local option law, and he appeals. Judgment of conviction on certain counts reversed, and on other counts affirmed.

Lew R. Thomason and Greensfelder Levi, all of St. Louis, for appellant.

Campbell & Ellison and Paul D. Higbee, all of Kirksville, for the State.

TRIMBLE, J.

This is a prosecution for violation of the local option law (Rev. St. 1919, §§ 6564-6571). It is founded upon an information which, at the trial, contained seven counts. Upon a trial before a jury, he was convicted on each count, and his punishment assessed, on each, at a fine of $750 and six months in the county jail. Thereupon the defendant appealed to this court, and then filed a motion to transfer the cause to the Supreme Court, because constitutional questions were involved and raised. The cause was on said motion transferred to the Supreme Court, because, !f such questions were in the case, that court had jurisdiction, and if there were any doubt of said questions being properly raised the Supreme Court was the tribunal which could at once and finally determine the matter. That court held the questions were not properly raised so as to give it jurisdiction, and transferred the case back to this court. State v. Kramer (Sup.) 222 S. W. 822.

Originally, the information contained 16 counts, but before the jury was impaneled all but 7 were dismissed. The remaining counts, upon each of which defendant was convicted, were the second, fourth, fifth, eighth, ninth, thirteenth, and fifteenth.

The second count alleged that the local option law was in force in the city of Kirksville in Adair county, Mo., containing 2,500 inhabitants, and charged that defendant did, in said city in December, 1018, unlawfully keep, store for, and deliver intoxicating liquor to Charles B. Matthews. The fourth count was the same, except that it charged defendant with an unlawful delivery of intoxicating liquor to John Harwood. The fifth charged defendant with an unlawful sale of intoxicating liquor to J. T. Curry. The eighth count charged an unlawful delivery of intoxicating liquor to J. T. Miller, Jr. The ninth count charged an unlawful sale of intoxicating liquor to W. L. Gillespie, the thirteenth charged an unlawful sale of liquor to Bird Calvin, and the fifteenth charged an unlawful sale to D. E. Hilt.

The defendant was, at the time of the prosecution and of the commission of the alleged offenses, president of the Maycliff Distributing Company, located at St. Louis, Mo., and the defendant resided there. As president of said company, he sent circulars to persons in Adair county, soliciting them to buy intoxicating liquor, and claiming therein to have obtained an order of court, compelling the American Railway Express Company to accept shipments of intoxicating liquor, and to deliver them to persons in dry territory.

In answer to these circulars, the respective persons named in the counts above mentioned sent orders to the defendant personally for intoxicating liquor. Each of the orders were so worded as to require the defendant to make Kirksville the place of the delivery proposed in his circular. For instance, the orders were dated at Kirksville, and required the intoxicating liquor to be "delivered to me here," and saying the one ordering it would pay upon delivery. Upon receipt of these the defendant answered each, requiring the money to be sent with the order or before shipment was made, and saying that upon receipt of the money the shipment would go forward promptly, and in some of these replies the defendant stated that he would "guarantee safe delivery." The persons sending the order thereupon sent the required amount, specifying that if defendant was not able to sell and deliver the liquor "to me here," the money should be returned. And in some of these letters sending the money, the risk and responsibility of delivering the liquor "to me here" was not only expressly stated to be with defendant and to rest entirely with him, but it was also stated the liquor was to be his until received by the one ordering it. The money sent was in the shape of checks or drafts, payable to the order of the defendant personally. They were indorsed by him and cashed, and the liquor was sent by express to the persons making the respective orders, and delivered to them in Kirksville, Adair county, Mo.

It is urged by the defendant that the sale of the liquor took place in St. Louis, and the delivery to the carrier there is the only delivery performed by the defendant, and hence there was neither an unlawful sale nor delivery by defendant in Kirksville, or Adair county. Ordinarily such is the general rule where liquor is ordered from a point outside the jurisdiction and the segregation and delivery thereof to the carrier takes place there. But the question is, under the particular contracts made by the orders and acceptances herein, where was the place of sale and delivery? We think the contract in each case fixed that place in Kirksville. Benj. on Sales (7th Ed.) 700; 35 Cyc. 173, 174; 10 C. J. 352, § 519; Street v. Werthan, etc., Burlap Co., 198 Mo. App. 336, 200 S. W. 739; State v. Rosenberger, 212 Mo. 648, 111 S. W. 509, 20 L. R. A. (N. S.) 284, 126 Am. St. Rep. 580; Ramsey &amp Gore Mfg. Co. v. Kelsea, 22 L. R. A. 415, 421, notes. The vendor in this case sent circulars into Adair county, soliciting persons to buy liquor, claiming therein to have obtained an order of court whereby he could compel delivery there; the orders sent in answer thereto merely accepted his proposition, and expressly fixed Kirksville as the place of delivery, and the defendant, by accepting the orders thus secured and made, certainly contracted to make that delivery which was necessary to complete the sale. State v. Swift & Co., 198 S. W. 457; Thomas v. Ramsey, 47 Mo. App. 84; N. K. Fairbanks Co. v. Illinois Central R. Co., 167 Mo. App. 286, 291, 149 S. W. 1154. And having undertaken to deliver at that place, he made the carrier his agent to do this for him. Taussig v. Southern Mill and Land Co., 124 Mo. App. 209, 101 S. W. 602. One can commit an offense and complete it through...