State v. Linton

• Decision Date: 14 January 1920
• Docket Number: No. 2591.,2591.
• Citation: 217 S.W. 874
• Parties: STATE v. LINTON.
• Court: Missouri Court of Appeals

217 S.W. 874

STATE v. LINTON.

No. 2591.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

A. E. Linton was convicted for violating the local option law, and he appeals. Cause transferred to the Supreme Court.

Smith & Bradley, of Kenneth, for appellant.

Hall & Billings, of Kenneth, for the State.

FARRINGTON, J.

The defendant was convicted on an amended information filed by the prosecuting attorney of Dunklin county for violation of the local option law, in that it is charged that he did unlawfully sell one pint of whisky. It appears from the record before us that the defendant had a brother by the name of William Linton, and that in attempting to charge the defendant A. E. Linton with this offense the information charges William Linton. This cause was tried on the amended information in February, 1919, alleging that the crime had been committed on December 13, 1918. It further appears that the prosecuting attorney had filed an original information containing two counts against this defendant under the name of William Linton. One of these counts is entitled State of Missouri v. William Linton, but the body of the information charges one Sharp with having unlawfully sold the liquor. The second count of the first information correctly charges the said William Linton with having unlawfully kept, stored, and delivered a pint of whisky, all on December 13, 1918. Both of these counts attempt to charge a crime for the identical transaction, one attempting to charge that an unlawful sale had been made, and the other of unlawfully keeping, storing, and delivering. The cause on the first information was set down for trial on January 14, 1919, and it appears that both sides announced ready for trial, a jury was impaneled and sworn, and at this stage of the proceeding the prosecuting attorney, evidently discovering the error in the first count of the information, in that in the body of the information it charged one Sharp with the sale, entered a nolle prosequi, and the sheriff was ordered to hold, the defendant until the prosecuting attorney could file an information. This jury was discharged. Afterwards, as before set out, an amended information, upon which the conviction was had, was filed, charging William Linton with having unlawfully sold intoxicating liquor in the forbidden territory. A plea autrefois acquit was filed by the defendant, setting up the facts as to the first information and the impaneling and swearing of the jury and the nolle entered, and alleging that the defendant, having been once placed in jeopardy for the crime charged in the amended information, was entitled to be discharged "in accordance with the Constitution of Missouri, which provides that no person shall be placed twice in jeopardy for the same offense."

The evidence in the cause tried on the amended information is sufficient to justify a verdict of conviction for unlawfully selling intoxicating liquor. There is a total failure of proof that the defendant stored or kept any intoxicating liquor in the transaction upon which the charge was based; and there is some evidence which necessarily grew out of the proof of the sale that he handed or delivered a pint of whisky to one Van Murphy.

There can be no doubt under the recent rulings of the Supreme Court that the defendant was never placed in jeopardy under" the first count of the original information, because it was an information which charged one Sharp with the crime and did not charge the defendant. See State v. McWilliams, 267 Mo. loc. cit. 450, 184 S. W. 96; State v. Schyhart (Sup.) 199 S. W. 205.

It must also be stated here as a fact that the defendant, A. E. Linton, proceeded with the trial under the second information under the name of William Linton. He was the man who was charged with the crime, and the one who was actually being tried; and it has been repeatedly held that under these circumstances the fact that the information charged a different name would not constitute reversible error. The record shows that the question of changing it to his proper name was discussed in open court by the attorneys, and it was agreed that the state need not amend the amended information to A. E. Linton. We then have a case where a defendant was charged with having kept, stored, and delivered intoxicating liquor in prohibition territory; that is, the second count of the first information, which was a good and valid charge where, before there was an acquittal or conviction by a jury, but after the jury was impaneled and sworn, the prosecuting attorney nolled...