State v. Meagher

• Decision Date: 02 April 1907
• Parties: STATE v. MEAGHER.
• Court: Missouri Court of Appeals

101 S.W. 634

124 Mo. A. 333

STATE v. MEAGHER.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

Rehearing Denied April 16, 1907.

1. INTOXICATING LIQUORS — REGULATIONS — ELECTION DAY.

Rev. St. 1899. § 3011 [Ann. St. 1906, p. 1726], provides for the punishment of licensed dramshop keepers who keep open on the day of any general election. In a prosecution of a dramshop keeper for opening at 6 o'clock p. m., after the polls were closed on a day of general election, held, that under Rev. St. 1899, § 4160 [Ann. St. 1906, p. 2252], requiring words and phrases to be taken in their usual sense, "the day" consisted of 24 hours, commencing and terminating at midnight, although the polls are to be open only from 7 o'clock a. m. until 6 o'clock p. m., or until sundown, as provided by section 6991 [Ann. St. 1906, p. 3408].

2. CRIMINAL LAW — APPEAL — NECESSITY OF SPECIFIC OBJECTIONS.

An objection to the admission of the record of the county court, showing that a dramshop license had been granted, is too general to be considered on appeal, when the reason assigned was merely that it was "incompetent, irrelevant, and immaterial."

3. INTOXICATING LIQUORS—EVIDENCE OF LICENSE.

In a prosecution of a licensed dramshop keeper for opening on an election day, evidence examined, and held to show that defendant was a licensed dramshop keeper.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

J. V. Meagher was convicted of keeping a dramshop open on election day, and he appeals. Affirmed.

T. D. Steele, for appellant. D. H. Kemp, for the State.

BLAND, P. J.

On information filed by the prosecuting attorney the defendant was convicted of a violation of section 3011, Rev. St. 1899 [Ann. St. 1906, p. 1726], which prohibits a licensed dramshop keeper from keeping his dramshop open on Sunday, or on any general election day. The facts are that November 8, 1904, was a day on which a general election was held in this state, and on said day defendant was a licensed dramshop keeper, in the city of Monett, Barry county; that after the polls were closed on said day, in said city, at 6 o'clock p. m., defendant opened his dramshop for business, and kept it open until a late hour at night. Section 6991, Rev. St. 1899 [Ann. St. 1906, p. 3408], provides: "The judges of each election * * * shall open the polls at seven o'clock in the morning and continue them open until six o'clock in the evening, unless the sun shall set after six, when the polls shall be kept open until sunset."

1. Defendant contends that, by the language of this section, an election day begins at 7 o'clock a. m., and closes at 6 p. m., or at sunset. The section does not undertake to define an election day, but prescribes the hours of the day between which the polls shall continue open. Bouvier defines a day, "in the natural sense, to consist of 24 hours, or the space of time which elapses while the earth makes a complete revolution on its axis." In Fox v. Abel, 2 Conn. 541, "Sunday," or the "Lord's Day," is said to mean "the natural or solar day," and the service of legal process after midnight of the day preceding Sunday was declared illegal because served on Sunday. A Georgia statute declares it to be a misdemeanor for any person to sell or give away intoxicating or malt liquors within two miles of an election precinct on any election day. In Rose v. State, 107 Ga. 697, 33 S. E. 439, it was held an election day was a day of 24 hours, commencing at midnight preceding the opening of the polls and ending at midnight succeeding the close of the polls. The Pennsylvania statute prohibits the sale of liquor on any election day. In Kane v. Commonwealth, 89 Pa. 522, 33 Am. Rep. 787, it was held that an election day, under the statute, included the whole 24 hours, "beginning at midnight of election morning and ending at midnight of election night." On a similar statute in Texas, the Texas Court of Appeals, in Janks & Newman v. State, 29 Tex. App. 233, 15 S. W. 815, held that the "election day" in the statute meant 24 hours, commencing and terminating at midnight. In Tennessee a statute prohibiting the sale of liquor on any election day defines the day to be from sunrise to sunset, and the Supreme Court of that state, in Wooster v. State, 65 Tenn. 533, held that the defendant did not violate the statute by selling liquor after sunset on an election day. Our statute does not define the day, and we must take it to mean what the term...