State v. Martin

• Decision Date: 30 June 1910
• Parties: THE STATE v. CHARLES H. MARTIN, Appellant
• Court: Missouri Supreme Court

129 S.W. 931

230 Mo. 1

THE STATE v. CHARLES H. MARTIN, Appellant

Supreme Court of Missouri, Second Division

June 30, 1910

Appeal from DeKalb Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Affirmed.

W. M Fitch for appellant.

(1) The second count of the indictment charges no offense under the laws of this State, because Sec. 3032, R. S. 1899, is unconstitutional and void in this: It is in contravention of section 28 of article 4 of the Constitution, in that the bill enacting said section 3032 was leveled at intoxicating liquors, and not against a non-intoxicating beverage therefore so much of said section as prohibits the sale of a non-intoxicating beverage is void and of no force. State v. Fulks, 207 Mo. 26; State v. Coffee Co., 171 Mo. 634; Witzmann v. Railroad, 131 Mo. 616; St Louis v. Weitzel, 130 Mo. 616; State ex rel. v. Scofield, 41 Mo. 39; State v. Persinger, 76 Mo. 346; People v. Beadle, 60 Mich. 22; Comm. v. Doll, 6 Pa. Co. Ct. Rep. 49; Comm. v. Carey, 151 Pa. St. 368; Albrecht v. People, 78 Ill. 510; Miller v. Jones, 80 Ala. 89; State v. Young, 47 Ind. 150; People v. Bird, 138 Mich. 31; State v. Barrett, 27 Kas. 213. (2) So much of section 3032 as prohibits one from giving away intoxicating liquors in good faith is unconstitutional. State v. Fulks, 207 Mo. 26. (3) The indictment was in two counts; there was a general finding of guilty, followed finally by a general judgment, and neither finding nor judgment specified on which count the finding and judgment were based. The defendant had a right to know this; it was brought up in the motion for a new trial. This was error. State v. Pitts, 58 Mo. 556; State v. Pierce, 136 Mo. 34; State v. Harman, 106 Mo. 635; State v. Hudson, 137 Mo. 618; State v. Karlowski, 142 Mo. 463; State v. Burke, 151 Mo. 136; State v. Rowe, 142 Mo. 439; State v. Jones, 168 Mo. 398; 12 Cyc. 692-695. (4) The second count of the indictment does not allege that the beverage sold was intoxicating. It is therefore not sufficient to charge defendant with an offense under the Local Option Law. State v. Houts, 36 Mo.App. 273. The Local Option Law does not prohibit the sale of a non-intoxicating liquor. R. S. 1899, secs. 3027-35. Section 3027 provides for an election "to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of such county," etc. Section 3030 provides the form of ballot for local option elections: "For the sale of intoxicating liquors," and "Against the sale of intoxicating liquors." Section 3031 follows this idea by providing that if a majority of the votes shall be "For the sale of intoxicating liquors," the general laws shall be in force; but if "Against the sale of intoxicating liquors," then publication, etc., shall be made. Section 3032 provides that "if a majority of the votes shall be 'against the sale of intoxicating liquors,' it shall not be lawful for any person within the limits of such county to directly or indirectly sell, give away or barter in any manner whatever any kind of intoxicating liquors, or beverages containing alcohol, in any quantity whatever." The enacting clause of the Local Option Law is to prohibit "the sale of intoxicating liquors." Therefore, it was never the intention of the Legislature, in enacting the Local Option Law, to prohibit the sale of a non-intoxicating beverage. (5) The indictment was fatally defective in failing to allege that said temperance beer was an intoxicating beverage. When "beer" is used alone, without qualification, it is said to mean an intoxicating beverage. State v. Houts, 36 Mo.App. 265; State v. Effinger, 44 Mo.App. 81; State v. Besheer, 69 Mo.App. 75. The conviction of defendant was erroneous because it is admitted by the evidence that temperance beer, mentioned in the indictment, was not intoxicating. (6) The court should have given instructions in this case whether requested or not; his failure therein is error. R. S. 1899, sec. 2627; Laws 1901, p. 140, subdiv. 4; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Gregory, 178 Mo. 48. (7) The Local Option Law is supplemental to the Dramshop Law, and is in pari materia with it, and they should be considered together in construing the Local Option Law. State v. Wingfield, 115 Mo. 440; State ex rel. v. Slover, 126 Mo. 652; Bank v. Heywood, 62 Mo. 556; Ross v. Railroad, 111 Mo. 18; Kane v. Railroad, 112 Mo. 34; 26 Am. and Eng. Ency. Law (2 Ed.), p. 616, note 1.

Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.

(1) The question for consideration, in a nut-shell, is what did the Legislature mean to include in the term "intoxicating liquors" as used in the title to said Local Option Act? If the term "intoxicating liquors" is broad enough to and does include all "beverage containing alcohol, in any quantity whatever," whether intoxicating or non-intoxicating, then appellant's objection to the sufficiency of said title is without merit. At the date of the passage of said Local Option Act in 1887, the dramshop laws of this State which were then in force, defined the term "intoxicating liquors" as follows: "The term 'intoxicating liquor,' as used in this chapter, shall be construed to mean fermented, vinous and spirituous liquors, or any composition of which fermented, vinous or spirituous liquors is a part, and all the foregoing provisions shall be liberally construed as remedial in their character." R. S. 1879, sec. 5161. This definition of "intoxicating liquors" was first adopted in this State in the year 1855, and has remained the law of this State since. R. S. 1855, p. 688, secs. 31, 32; R. S. 1879, sec. 5461; R. S. 1889, sec. 4595; R. S. 1899, sec. 3016. The phrase appearing in said section 5461, "or any composition of which fermented, vinous or spirituous liquors is a part," certainly is included in the inhibition of Sec. 3032, R. S. 1899, sec. 6, of Local Option Act, prohibiting any sale or gift of "any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever." At the time of the passage of the Local Option Act in 1887, no person was permitted, under the provisions of the dramshop laws then in force (and now), to sell "any composition of which fermented, vinous or spirituous liquors is a part," without first taking out a license as a dramshop keeper. If such "composition" contain the least per cent. of fermented, vinous or spirituous liquors, whether intoxicating or non-intoxicating, it came under the ban and could not be legally sold except by a dramshop keeper. R. S. 1879, sec. 5461; R. S. 1899, sec. 3016. In the passage of the Local Option Act, it was certainly the intent of the Legislature to provide a law whereby the people by the required vote might prohibit altogether the sale of "intoxicating liquors," as was then permitted under the dramshop laws, and the title of the act was doubtless so understood by the members voting for the Local Option Act. State ex rel. v. County Court, 102 Mo. 537; State v. Bengsch, 170 Mo. 106; State v. Cantwell, 179 Mo. 260. In construing the title to the Local Option Act, the court should give the term "intoxicating liquors" a liberal construction and such as it was understood to mean in the dramshop laws then in force in this State. State v. Intoxicating Liquors, 76 Ia. 245. (2) The appellant treated the two counts as charging but a single offense. It would be manifestly unfair to the trial court now to permit appellant to urge that the two counts in the indictment charge more than one offense, the unlawful sale of one quart of beer. Where all the counts in an indictment relate to the same transaction, and charge but a single offense, a general verdict of guilty is proper. State v. Stewart, 90 Mo. 507; State v. Van Waye, 136 Mo. 227; State v. Schmidt, 137 Mo. 266; State v. Bedell, 35 Mo.App. 551; State v. Pitts, 58 Mo. 556; State v. McDonald, 85 Mo. 539; State v. Noland, 111 Mo. 473. Appellant, by submitting this case on the agreed statement of facts, and treating both counts as charging but a single offense, waived any right, if he had such a right, to have a separate finding on each count. State v. Spurgeon, 102 Mo.App. 34.

OPINION

FOX, J.

On October 20, 1908, the grand jury of DeKalb county duly returned an indictment in two counts, charging appellant with a violation of the Local Option Law of this State. The first count of said indictment charged that appellant "did then and there unlawfully sell one quart of beer" on August 12, 1908, for the price and sum of twenty-five cents, contrary to the provisions of the statute in such cases made and provided, and against the peace and dignity of the State. The second count of said indictment charged that appellant "did then and there sell a fermented, malt beverage containing alcohol, to-wit, one quart of temperance beer, a fermented and malted beverage, containing alcohol," on August 12, 1908, for the price and sum of twenty-five cents, contrary to the provisions of the statutes in such cases made and provided and against the peace and dignity of the State.

Appellant challenged the sufficiency of said indictment, by what he denominated a "plea in abatement, or demurrer," which the court overruled.

This cause was submitted to the court on the following agreed statement of facts:

"AGREED STATEMENT OF FACTS.

"It is agreed that this case may be submitted and tried on the following facts as evidence.

"1st. That on or about the 12th day of October, 1907, an act of the Legislature of the State of Missouri, approved 1887, commonly known as Local Option Law, and being article 3, chapter 22, Revised Statutes of Missouri 1899, was duly and legally adopted in said county, and was thereafter in full force and effect in said...