State v. Marshall

• Decision Date: 13 November 1917
• Docket Number: No. 2133.,2133.
• Citation: State v. Marshall, 198 S.W. 451 (Mo. App. 1917)
• Parties: STATE v. MARSHALL.
• Court: Missouri Court of Appeals

198 S.W. 451

STATE v. MARSHALL.

No. 2133.

Springfield Court of Appeals. Missouri.

November 13, 1917.

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

T. V. Marshall was convicted of violation of the local option law, and he appeals. Affirmed.

STURGIS, P. J.

The defendant appeals from a judgment of conviction in the Oregon county circuit court for selling intoxicants in violation of the local option law in force in that county. The information is in the usual and oft-approved form, charging the offense to have been committed on August 25, 1916. The defendant secured a change of venue from the regular judge, and Hon. W. S. C. Walker, of the Twenty-Second judicial circuit, was called in and tried the case.

The first suggestion of error is that there was no sufficient proof to go to the jury that any beverage containing alcohol was sold by defendant. On this point the evidence abundantly shows that defendant, in connection with his brother George, was in August, 1916, while an old soldier's and settler's reunion was being held at Mammoth Springs, conducting a refreshment stand near such town. The town of Mammoth Springs is just over the Missouri state line in Arkansas, but defendant's stand was on the Missouri side. Defendant was shown to be one, if not the only, proprietor of this stand and of the goods sold there by his clerk, Tom Royle, employed during the week of the reunion. One witness said he went to this stand and bought and paid for "some stuff they called beer"; that was what he called for, and what he got; that he drank it, and it tasted like beer; and that it had the desired effect of making him "feel pretty good." This witness qualified by saying he had been drunk several times in his life; that he had drunk "Non-Tox," but this tasted different, and had a different effect. Another witness said he had bought there and drank, he thought, as much as 40 bottles; that it tasted like beer; that he thought somebody put whisky in it. The result of his drinking was that he not only "felt pretty good," but in the evening, from his inability to stay on his feet, he thought some one was tripping him when no one was around. It was also shown that defendant had stated to a witness during that same fall, in speaking of his business, that he was going to sell liquor as long as he liked, and that when he died his children would sell it. It further appeared that shipments of beer, whisky, etc., were made to him at Mammoth Springs, and that in September, 1916, he had on hand 90 barrels of empty beer bottles. There was other evidence, but this will show that the jury was amply justified in returning a verdict of guilty and assessing more than the minimum fine.

No criticism is made of the instructions, and we find them fair and correct.

The state, assuming that the local option law was in force in that county, introduced its evidence as to the sale of intoxicants by the defendant. The defendant then offered one witness, whose evidence will presently be noted. Thereupon the state was allowed, over defendant's objection that the case was closed, to put in evidence the records of the county court showing the adoption of the local option law in Oregon county on July 16, 1910, and the due publication of the result of the special election. This was before the instructions were given and the case argued. While the proof that the local option law had been adopted and was put in force in the county of the crime was a necessary part of the state's case, and was evidence in chief and not in rebuttal, yet we cannot convict the court of an abuse of its discretion in permitting this proof to be made out of its regular order. This proof is in the nature of a formal matter, and we cannot conceive how the defendant was prejudiced in his rights by the fact that the proof was not made in the proper order. State v. Bales, 181 S. W. 601; State v. Baker, 36 Mo. App. 58, 61; State v. Buchler, 103 Mo. 203, 15 S. W. 331; State v. Eisenhour, 132 Mo. 140, 33 S. W. 785; State v. Reed, 137 Mo. 125, 38 S. W. 574.

We pass to the only matter of serious concern. When the panel of prospective jurors was called, the defendant objected to the qualification of five named persons, because said jurors,...