State v. Moeling

• Decision Date: 15 June 1911
• Docket Number: 18,880
• Citation: 129 La. 204,55 So. 764
• Court: Louisiana Supreme Court
• Parties: STATE v. MOELING

55 So. 764

129 La. 204

STATE v. MOELING

No. 18,880

Supreme Court of Louisiana

June 15, 1911

Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Winston Overton, Judge.

Robert Moeling was convicted of selling liquor without a license and he appeals. Affirmed.

J. W Baker, for appellant.

Walter Guion, Atty. Gen., Joseph Moore, Dist. Atty., and Robert L Knox, Acting Dist. Atty. (G. A. Gondran, of counsel), for the State.

OPINION

MONROE, J.

Defendant was prosecuted by bill of information, in two counts, for unlawfully keeping and carrying on a grog and tippling shop without a license, and unlawfully retailing spirituous and intoxicating liquors without a license, the bill setting forth the particulars of the alleged offenses as follows:

"That, in support of each of the above counts the following sale will be proved: On March 22, 1911, one pint of whisky, the manual delivery of which was made by said Robert Moeling; that, in keeping said grog and tippling shop, said Robert Moeling made other sales than the one above mentioned; that the place where said grog and tippling shop was kept was at the building located at the northwest corner of Ryan and Lawrence streets, in the city of Lake Charles, in said parish and state, this building having no number, the number of the house next to it being 326."

By an amendment to the bill, it was alleged that another pint of whisky was sold, at the same place, on March 18, 1911.

Defendant moved to quash the bill, on the grounds: (1) That prohibition and local option laws are in effect in the parish of Calcasieu and that the police jury has not imposed, and is without authority to impose, any tax or license for the keeping of a grog or tippling shop or the retailing of spirituous and intoxicating liquors; (2) that the acting district attorney, Robert L. Knox, is without authority to file the bill, not having been elected to the office of district attorney, but, having been appointed by the court, in certain cases, to act in the place of the district attorney; (3) that the bill alleges two separate and distinct offenses.

The motion was overruled and a bill of exceptions was reserved.

1. The state law (R. S. 910, as amended and re-enacted by Act 66 of 1902) provides that:

"Whoever shall keep a grog or tippling shop, or retail spirituous liquor, without previously obtaining a license from the police jury, town, or city authorities, on conviction, shall be fined," etc. -- and, if it be a violation of the law to keep a grog or tippling shop, or to sell intoxicating liquor, without a license, in a place where a license might be obtained, a fortiori is it a violation of the law to keep such shop or sell such liquor in a place where the law prohibits both the doing of those things without a license and the issuance of any license therefor. State v. Kuhn, 24 La.Ann. 474; State v. Brown, 41 La.Ann. 774, 6 So. 638; State v. Gray, 111 La. 853, 35 So. 952.

2. The judge a quo states, in signing the bill of exceptions, that the district attorney being unable to attend to his duties, because of sickness, he appointed Mr. Knox, acting district attorney, under Act 74 of 1886, and administered the oath of office to him, and that he did not restrict his authority to specific cases. The act referred to authorizes the appointment, as made, and the appointee is vested with all the authority of the district attorney. State v. Johnson, 41 La.Ann. 1076, 6 So. 802; State v. Montgomery, 41 La.Ann. 1087, 6 So. 803; State v. Fontenot, 48 La.Ann. 283, 19 So. 113; State v. Smith, 107 La. 129, 31 So. 693, 1014; State ex rel. Stewart v. Reid, 113 La. 890, 37 So. 866.

3. "Two distinct offenses may be charged in separate counts, and a conviction of either is unquestionably regular." State v. Depass and Baptiste, 31 La.Ann. 489; State v. Gilkie, 35...