State v. Leach

• Decision Date: 03 April 1917
• Docket Number: No. 14449.,14449.
• Parties: STATE v. LEACH.
• Court: Missouri Court of Appeals

193 S.W. 916

STATE v. LEACH.

No. 14449.

St. Louis Court of Appeals. Missouri.

April 3, 1917.

Rehearing Denied April 18, 1917.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

John C. Leach was convicted of violating the local option law, and appeals. Affirmed.

J. A. Whiteside, of Kahoka, for appellant. J. H. Talbott, of Kahoka, for the State.

REYNOLDS, P. J.

The indictment in this case, which was filed August 15th, 1913, sets out that on August 17th, 1912, what is known as the local option law was duly adopted in Clark county; that afterwards, on October 15th, 1912, that law being in full force and effect in the county, the defendant Leach, then and there unlawfully sold intoxicating liquor, to-wit, a half pint of whiskey, etc., for the price and sum of thirty-five cents, without then and there having any authority to make such sale, contrary, etc. The name of only one witness, L. A. Hudson, was indorsed on the back of the indictment.

The defendant filed an affidavit for a change of venue, on the ground that the minds of the inhabitants of Clark county were so prejudiced against him that he could not have a fair trial of his cause in that county; that he first obtained information and knowledge of this prejudice on November 29th, 1913, filing the affidavit December 3rd, 1913, apparently on the first day of that term. The application was accompanied by the affidavit of a number of citizens, to the effect that the facts stated in the affidavit for change of venue were true. No action was taken on this application, it never being passed upon by the court. It appears that the December term was opened by the sheriff, the judge not being present, on which day the above affidavit was filed.

Afterwards, and on December 17th, 1913, court met and the cause was called for trial. Defendant entered a plea of not guilty and the cause proceeding to trial before a jury, resulted in a verdict of guilty, defendant's punishment being assessed at a fine of $300. Filing a motion for a new trial, in which it is alleged, among other and usual grounds, that the court erred in permitting two witnesses, who were not named on the back of the indictment, to testify, and that motion being overruled, defendant also filing a motion in arrest of judgment. Both of these were overruled and judgment was entered in accordance with the verdict. From this defendant has duly perfected his appeal to our court.

Proof of the adoption of the local option law by the county on August 17th, 1912, was introduced and admitted without objection.

The testimony of L. A. Hudson, whose name appeared on the indictment as a witness, is very hard to understand, as transcribed. He testifies that he had bought whiskey from defendant, all the way from a drink to a gallon. Asked if he did this before August, 1913, he answered, "No." Asked if he had bought "before that time and since September 12th," he answered, "Yes, sir, since then." That he got it whenever he wanted it and paid all the way from thirty-five cents to $1.50, according to the amount bought; had bought whiskey by the half pint, paying thirty-five cents for that; when he bought a drink, paid ten cents. Witness had no prescription when he bought, except once. On cross-examination, witness testified that on the occasion when he bought on a prescription, it was along in the fall but he could not tell the date; that he got a prescription then because defendant would not sell it without a prescription; had bought it once for camphor; had bought it with camphor, which was placed in it by a woman acting as clerk in defendant's store but he had no prescription for that; that he had only bought it once with camphor in it. Witness being asked if he had ever sent his son to get whiskey, counsel for defendant said, "I object to this;" objection overruled and exception saved. Witness then in answer to questions to which there was no objection made, testified that he had sent his son once; that he got whiskey and had no prescription.

The son, Elmer Hudson, testified that he had bought a half pint of whiskey from defendant in February last, that is in 1913; bought a half pint, and again in the middle of March bought a quart; had no prescription on either occasion. When he went in the first time, he asked for a pint of whiskey and the second time for a quart. On cross-examination he testified that his father had sent him for it.

At the conclusion of this witness's testimony, counsel for defendant moved to strike out all the evidence of the last named witness because defendant is a druggist and the name of the last witness is not on the back of the indictment. This was overruled, defendant excepting.

Another witness, James Shore, testified he had purchased intoxicating liquor from the defendant but could not tell the date exactly. Asked if it was prior to August 15th, 1913, witness said he did not know whether it was or not; that it was along last winter (that would be the winter of 1912-1913). At that time he bought a drink of whiskey and paid ten cents for it; bought it in Luray, Clark county, from defendant at his drug store. Asked if he could state approximately the month in which he got it, he said it would be hard for him to do so; that he had bought twice; that it was toward spring. On redirect examination witness testified he had no prescription when he bought.

This is the case for the State and it rested, whereupon counsel for defendant moved to strike out all the testimony of this last witness, for the reason that his name was not on the indictment. This was overruled, defendant excepting.

Defendant, recalling Elmer Hudson for further cross-examination, witness said he had not gone to the defendant's store to get whiskey for his father and told him that his father was sick; had got whiskey for his father but had not told defendant that his father was sick; defendant had not asked him anything about having a prescription and he had none; all that defendant said to him, was that he ought to have an order but defendant did not tell him that he (defendant) could not sell it without a prescription and could not sell it to this witness even with a prescription because he was under age.

Defendant, sworn on his own behalf, denied that James Shore had ever bought any whiskey of him since the local option law went into effect, nor had Elmer Hudson; testified to a conversation with Elmer Hudson; testified that Mr. Hudson, apparently referring to L. A. Hudson, had bought whiskey from him since the local option law had been passed on prescription; that he had filled one or two prescriptions for him; that Hudson had bought whiskey since the local option law went into effect on one occasion when witness had sold him half a pint for camphor; that Hudson and his wife came to his store and wanted a half pint of whiskey for camphor and he told them he would not sell without a prescription, but he let them have the whiskey and Hudson and his wife filled the bottle there with camphor gum and that was all he sold without a prescription. In a conversation between him and Hudson and the son of the latter, Hudson told him that all the whiskey he got from him was for camphor and that he and his wife, that is Hudson and his wife, put the camphor in at the store and that was all the whiskey he had sold him since the local option law went into effect and Hudson told him that he and his wife would swear to that; denied he had ever sold Elmer Hudson any whiskey; that he was under age; told him he would have to have an order and he said he was sick and wanted a half pint and defendant told him he could not get it without a prescription and order; that he (defendant) was running a drug store in Luray, Clark county; had been conducting that since January, 1911.

It was admitted that defendant is a licensed druggist and pharmacist and kept a drug store.

Defendant further testified that he had never sold Shore any whiskey since the local option law went into effect; testified that he could not remember when Hudson and his wife got the camphor; could not say whether the local option law was then in effect.

There was evidence introduced tending to contradict the testimony of one or more witnesses for the State.

At the conclusion of the testimony defendant asked an instruction directing the jury to find the defendant not guilty, which the court refused, defendant excepting.

The court thereupon instructed the jury on behalf of the State that the local option law was in force in Clark county on and after September 20th, 1912 (that being the date at which the county court entered up its order certifying to the adoption of the law at the election held August 17th of that year). It further told the jury that if they believed from the evidence and beyond a reasonable doubt that defendant did, in the County of Clark, State of Missouri, "after September 20th, 1912, and any time within one year next before the filing of the indictment in the case, to-wit, August 15th, 1913, sell intoxicating liquors, in any quantity," the jury should "find him guilty and assess his punishment at a fine not exceeding $1,000 and not less than $300 or by imprisonment in the county jail not more than one year and not less than six months or by both such fine and imprisonment." (Italics ours.)

The court also submitted forms of verdict to the jury.

Defendant objected to the giving of this instruction, saving his exception.

On the part of defendant the court instructed the jury that before they could convict him it devolved upon the State to establish the guilt of the...