State v. Malone

• Decision Date: 11 January 1946
• Docket Number: No. 6612.,6612.
• Citation: 192 S.W.2d 68
• Parties: STATE OF MISSOURI, RESPONDENT, v. HATTIE MALONE, APPELLANT.
• Court: Missouri Court of Appeals

192 S.W.2d 68

STATE OF MISSOURI, RESPONDENT, v. HATTIE MALONE, APPELLANT.

No. 6612.

Springfield Court of Appeals. Missouri.

January 11, 1946.

Appeal from Circuit Court of Butler County. — Hon. Randolph H. Weber, Judge.

AFFIRMED.

Ted M. Henson and Cope & Ponder for appellant.

The information does not charge the defendant with a crime. Secs. 4950 and 4995, R.S. Mo. 1939. Special statute prevails over general statute. State v. Mangearocina, 125 S.W. (2d) 58; State v. Richman, 140 S.W. (2d) 796; State v. Kessels, 120 Mo. App. 234. That which is clearly implied by statute is a part thereof as if expressed in words. Coleman v. Blair, 151 S.W. 148. Statutes must be construed in a criminal case most favorable to defendant. Anthony v. Kaiser, 169 S.W. (2d) 47; McClaren v. G.S. Robins & Co., 162 S.W. (2d) 856. 3.2% beer is a non-intoxicating beer. Secs. 4977, 4994, R.S. Mo. 1939.

David W. Hill for respondent.

This prosecution is authorized by Section 4742, R.S. of Mo. 1939. The permit or license to sell three-two beer did not authorize the defendant to sell fermented liquor in the afternoon on Sunday. Lambert v. State, 8 Mo. 493, page 355. The information does allege an offense against the laws of the State of Missouri, the allegations thereof were sustained by the undisputed evidence, the trial court correctly ruled, in overruling defendant's motion to quash, and her demurrer at the close of the case. The State proved, and the court would take judicial notice of the fact, that beer is a fermented liquor. State v. Effinger, 44 Mo. App. 81; State v. Williamson, 21 Mo. 496; State v. Houts, 36 Mo. App. 265; State v. Watts, 74 S.W. 376; State v. Nations, 75 Mo. 53; State v. Hoeckler, 81 Mo. 417; State v. Dengolensky, 82 Mo. 44; State v. Lucas, 94 Mo. App. 117; State v. Watts, 101 Mo. App. 658; State v. Hogan, 252 S.W. 90; State v. Burk, 151 Mo. App. 188; State v. Burk (same case in Supreme Court), 234 Mo. 574. There is no conflict between Section 4742, R.S. 1939, and Section 4950, R.S. 1939; when the permitee took her permit to sell so-called non-intoxicating beer under said Section 4950, she took the permit subject to the general law Section 4742, supra, which provides that fermented liquor cannot be sold on Sunday. And Section 4995, R.S. 1939, does not help the appellant in this regard, as it simply provides for heavier punishment for sales of non-intoxicating beer between the hours of 1:30 a.m. and 6 o'clock a.m. The punishment fixed in that section may be a year in jail or a fine of not more than one thousand dollars nor less than fifty dollars, while the punishment fixed by section 4742, supra, provides a maximum punishment of a fine of fifty dollars. While Section 4950, supra, does exempt the nonintoxicating liquor act from the operation of certain laws, it does not exempt it as to the operation of Section 4742, supra. The fact that section 4995, supra, provides greater punishment for sales of so-called non-intoxicating beer between the hours of 1:30 o'clock a.m. and 6 o'clock a.m. would not have the effect of repealing the general law, Section 4742, supra, and would not authorize the sale of such beer at other hours in violation of said Section 4742. Lambert v. State, 8 Mo. 493, p. 355. So-called non-intoxicating liquor shall be labeled. Section 4963, R.S. 1939; Section 4969, R.S. 1939. To indicate how farcical a non-intoxicating liquor label is, we call the court's attention to the fact that so-called non-intoxicating beer is made of exactly the same ingredients as intoxicating beer. Section 4980, R.S. 1939; Section 4921, R.S. 1939.

VANDEVENTER, J.

On May 14, 1945, the Prosecuting Attorney of Butler County, Missouri, filed in the circuit court thereof the following verified information:

"David W. Hill, Prosecuting Attorney of Butler County, Missouri, upon his official oath, information and belief, informs the Court that the defendant, Hattie Malone, in Poplar Bluff Township, Butler County, Missouri, in the afternoon of the thirteenth day of May, 1945, it being the first day of the week commonly called Sunday, did then and there unlawfully sell and deliver to Cecil Eley, for the sum of forty cents, two pints of beer, a fermented liquor, the container bottles bearing the label Budweiser Beer, and commonly called `Three-Two Beer'; against the peace and dignity of the State."

The evidence at the trial showed that the defendant about 12:30 p.m. May 13, 1945, which was Sunday, sold two bottles of Budweiser Beer, commonly called 3.2 beer, and the evidence further showed that beer was a fermented liquor. She was convicted by the jury and her punishment assessed at a fine of $25. Motion to quash the information was filed and overruled, an instruction in the nature of a demurrer was filed at the close of the State's evidence and another at the close of all the evidence and they, too, were overruled. Two errors are alleged in appellant's motion for new trial. (1) Failure of the court to quash the information, (2) failure of the court to sustain the demurrer asking for directed verdicts for defendant. The only question raised in the brief is whether or not Article 2 of Chapter 32 of the Missouri Revised Statutes Annotated of 1939 repealed Section 4742, by implication. Section 4742 is as follows:

"Section 4742. SELLING GOODS ON SUNDAY.

"Every person who shall expose to sale any goods, wares or merchandise, or shall keep open an ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars."

The pertinent sections of Article 2 of Chapter 32, supra, are 4950 and 4995. They follow:

"Beer having an alcoholic content of not less than one-half of one per cent by volume nor exceeding 3.2 per cent by weight, is hereby declared to be nonintoxicating beer, and may be lawfully manufactured and sold, or sold, in this State by any holder of a permit issued by the supervisor of liquor control of this State, authorizing such manufacture and sale, or sale, and may be lawfully transported, sold and consumed, in this State, and may be lawfully shipped into, or out of, this State subject to such inspection fees, and/or taxes, and under such regulations as may be provided by law, and such manufacture, sale, transportation, and consumption, shall be exempt from the provisions of chapter 31, Revised Statutes of Missouri, 1939; and exempt, also, from any of the provisions of said chapter and of any other law of this State in conflict with the provisions of this article. All beverages having an alcoholic content of less than one-half of one per cent by volume shall be exempt from the provisions of this article but subject to inspection as provided in article 7 of chapter 58."

"Section 4995. No person having a license under the provisions of this article, shall sell, give away or otherwise dispose of, or suffer the same to be done, upon or about his premises, any nonintoxicating beer in any quantity between the hours of one-thirty o'clock a.m., and six o'clock a.m., and any person violating any provision of this section shall be deemed guilty of a misdemeanor and shall be punished by imprisonment in the county jail for a term of not more than one year, or by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or by both such fine and jail sentence."

In determining this point, it might be well to consider briefly the well-established rules of law governing the repeal of statutes by implication. There is no contention that Section 4742 has been specifically repealed. If Section 4742 has not been repealed the information is sufficient and the motion to quash it should have been overruled. [State v. Watts, 101 Mo. App. 658, 74 S.W. 377; State v. Effinger, 44 Mo. App. 81; State v. Dengolensky et al., 82 Mo. 44; State v. Williamson, 21 Mo. 496; State v. Roehm, 61 Mo. 82; State v. Kock, 61 Mo. 117; State v. Nations, 75 Mo. 53.]

Repeal of statutes by implication is not favored. [State ex rel. St. Louis Police Relief Ass'n v. Igoe, 107 S.W. (2d) 929, 340 Mo. 1166; Graves v. Little Tarkio Drainage Dist. No. 1, 134 S.W. (2d) 70, 345 Mo. 557; Coleman v. Kansas City, 156 S.W. (2d) 644, 348 Mo. 916; Lajoie v. Central West Casualty Co. of Detroit, 71 S.W. (2d) 803, 228 Mo. App. 701.]

The repeal of a statute by a subsequent statute is a question of intention, and there is a presumption against the intention to repeal where express terms are not used. [State ex rel. St. Louis Police Relief Ass'n v. Igoe, supra.]

If by any fair interpretation all the sections of the statutes can stand together, there is no repeal by implication. [Hull v. Baumann, 131 S.W. (2d) 721, 345 Mo. 159.]

An act may be repealed by necessary implication, if a later act is so repugnant to the former that the two cannot stand, even though no mention is made of the former act in the later. [Vining v. Probst (Mo. App.), 186 S.W. (2d) 611.]

But though two acts are seemingly repugnant they must, if possible, be so construed that the later will not operate as a repeal, by implication, of an earlier one and if they are not irreconcilably inconsistent, both must stand. [Graves v. Little Tarkio Drainage District No. 1, supra.]

The repugnancy between the later and the prior statutes must be wholly irreconcilable in order to work a repeal of the prior act. [State ex rel. Wells v. Walker, 34 S.W. (2d) 124, 326 Mo. 1233; Use of Geo. B. Peck Co. v. Brown, 105 S.W. (2d) 909, 340 Mo. 1189; Graves v. Little Tarkio Drainage Dist. No. 1, supra; State ex rel. City of Republic v. Smith, 139 S.W. (2d) 929, 345 Mo. 1158.]

Section 4742 first appears in Revised Statutes, 1825, Page 311 Section 92. At that time it limited the acts to the period after "10 o'clock in the morning." Later this section was amended and appeared in the Missouri Revised Statutes 1845, Page...