State v. McWilliams

• Decision Date: 22 April 1879
• Citation: 7 Mo.App. 99
• Parties: STATE OF MISSOURI, Respondent, v. JOHN MCWILLIAMS, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 99

STATE OF MISSOURI, Respondent,

v.JOHN MCWILLIAMS, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 22, 1879.

1. Where the statute prohibits, in one clause in the alternative, the advertising, exposing for sale, and selling of lottery-tickets, the clause may be treated in an indictment as though it created one offence, and they may be united in one count.

2. A motion to quash, not followed by a motion in arrest, will not be reviewed in the appellate court.

3. The contract between Gregory and the town of New Franklin reserved to the former the right to abandon his contract in case of legislative or judicial interference, but gave him no right to suspend the operation of the contract during the time of such interference.

4. The act incorporating the town of New Franklin, and its several supplements, gave no warrant for selling lottery-tickets in Missouri on June 28, 1878.

H. A. CLOVER, for appellant: The joinder of two or more distinct offences in one count will not be permitted.-- The State v. Howe, 1 Rich. 260; Reed v. Parker, 1 Park. Cr. 481; United States v. Sharp, Pet. C. Ct. 131; The State v. Bridges, 24 Mo. 353; The Commonwealth v. Simonds, 2 Mass. 163.

ED. P. MCCARTY, for respondent: The information charged but one offence.-- The State v. Hindman, 4 Mo. App. 582; The State v. Murphy, 47 Mo. 274. No motion in arrest having been filed, the court cannot review the action of the trial court in overruling the motion to quash.-- Lancaster v. Touhey, 62 Mo. 121; Curtis v. Curtis, 54 Mo. 351; Matlock v. Williams, 59 Mo. 105.

LEWIS, P. J., delivered the opinion of the court.

This cause was tried before a jury in the Court of Criminal Correction, upon an information which charges that the defendant, “on the 28th day of June, 1878, and on divers other days, wrongfully and illegally did sell, and expose to sale, and keep on hand for the purpose of sale, and did advertise and cause to be advertised for sale, and did then and there aid and assist and was concerned in the sale and exposure to sale of certain lottery-tickets, or shares or parts of lottery-tickets, in a certain lottery known as the Missouri State Lottery,” etc. The jury found the defendant guilty, and assessed his punishment at a fine of $1,000. There was a motion to quash the information, on the ground, chiefly, that it embraced different and distinct offences in one count. The court's refusal to sustain this motion is assigned for error.

In The State v. Hindman, 4 Mo. App. 582, an information framed substantially in the same language was held to be good. The defendant's counsel asks us to review our decision in that case, and supports his application in an ingenious argument presented with undeniable force. He points out the distinction between a series of distinct acts constituting together a single offence, and a number of acts, each being in itself a separate offence. Thus, quoting from The Commonwealth v. Eaton, 15 Pick. 273: “It is true that an offer to sell, without selling a ticket, is an offence by the statute, but an offer to sell and actually selling is but one offence. A sale, ex vi termini, includes an offer to sell.” So, publishing and causing to be published a certain libel constitute but one act, and therefore but one offence. But the learned counsel insists that if both the acts and the offences be distinct and independent of each other, they cannot be joined in the same count. He proceeds to analyze the charges in the present information, and finds them reducible to three independent accusations, viz.: 1. The selling and causing to be sold, etc. 2. The exposing and causing to be exposed to sale, etc. 3. The advertising and causing to be advertised for sale. But the reduction stops too soon. If every sale includes an offer to sell, why may it not also include an exposure to sale? And since advertising for sale is but an auxiliary of exposure to sale, why may not both acts be considered as only so many steps to the single offence of selling? It is no answer to say that each step is severally prohibited, and therefore a distinct offence; for it is already shown that an offer to sell may be a distinct offence, and yet, when coupled with an actual sale, it becomes only an element in the offence of selling. But we are not dependent upon this reasoning for a defence of our conclusions in The State v. Hindman. We find them unequivocally sustained in The State v. Murphy, 47 Mo. 274. The defendant was charged in one count with keeping open a tippling-shop on Sunday, and with selling on the same day, to divers persons, one glass and gill of beer, one glass and gill of whiskey, etc., each for the sum of ten cents, contrary, etc. Here were several distinct accusations, each capable of standing by itself. Even the keeping open was not necessarily included in the selling. Either act could have been performed without the other. Every sale made was also a separate offence against the statute. Said the count: “The rule is that no more than one offence can be charged in one count; but there are exceptions. When a statute in one clause forbids several things, or creates several offences in the alternative which are not repugnant in their nature or penalty, the clause is treated in pleadings as though it created but one offence; and they may be all united conjunctively in one count, and the count is sustained by proof of one of the offences charged.” In the present instance, the statute forbids in one clause, in the alternative, all the acts which are conjunctively charged in the information. Wag. Stat. 503, sect. 28. This brings the pleading within the letter of approval by the Supreme Court.

But were this a new question, and involved in any doubt, another difficulty would oppose the defendant's claim. It is a settled rule of practice that a motion to quash will not be reviewed by an appellate court, where it was not followed up in the court below by a motion in arrest of judgment. The State v. Conrad, 21 Mo. 271. The defendant filed no motion in arrest in the present case, and even if the informations were found to be defective, there could be no reversal on that account.

The defendant claims protection against this prosecution, under the act incorporating the town of New Franklin, approved January 16, 1833, and the several supplementary enactments, with the contracts and transfers made by their authority. The trustees of the town were authorized to raise by lottery the sum...