State v. Parmeley
| Decision Date | 08 November 1921 |
| Docket Number | No. 16621.,16621. |
| Citation | 234 S.W. 867 |
| Parties | STATE v. PARMELEY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Washington County; Elbridge M. Dearing, Judge. "Not to be officially published."
Lane Parmeley, Jr., was convicted of violation of the local option law, and appeals. Affirmed.
H. B. Irwin, of De Soto, for appellant.
W. A. Cooper, of Senath, for the State.
The defendant, appellant here, was indicted in the circuit court of Washington county for selling one pint of whisky, in violation of the Local Option Law (article 4, chapter 52, R. S. 1919). Prom a judgment of conviction he appeals.
The appellant has filed no brief or assignment of errors, but the cause is here upon a full transcript of the record in the' cause, including the bill of exceptions, judgment, and sentence.
As the appellant has not urged here any particular error committed by the trial court. we have considered the assignments made in the motion for a new trial and in arrest of judgment, and treated said assignments as though they were urged here.
The motion in arrest attacks the judgment on the ground that the indictment fails to charge any offense against the laws of this state. The indictment charges as follows:
"The grand jurors for the state of Missouri, summoned from the body of Washington county, impaneled, charged, and sworn, presents that on the 5th day of January, 1916, at the county of Washington, the act of the Legislature of the state of Missouri, approved on the 24th day of March, 1887, and the amended law of 1913 from pages 388 to 392, inclusive, commonly known as the Local Option Law, being article 3, chapter 63, of the Revised Statutes of said state, had been adopted and was and is in force as the law of this state, within the county of Washington, there being no city in said county having a population of 2,500 inhabitants or more, and that on ____ day of January, 1917, Lane Parmeley, Jr., did then and there unlawfully sell certain intoxicating liquor, to wit, one pint of whisky for the sum of 75 cents, and that the said Lane Parmeley, Jr., did not then and there have any license of any kind authorizing him to sell the same, and that the said sale was then and there made without any legal authority whatever to sell the same, against the peace and dignity of the state."
The indictment is in due form; it contains every essential allegation and is sufficient. State v. Zehnder, 182 Mo. App. 161, 168 S. W. 661; State ex rel. v. Robertson, 262 Mo. 613, 172 S. W. 6.
Appellant contends in his motion for a new trial that there was no evidence upon which to base the judgment rendered, because the state failed to show the adoption of the local option law in Washington county, Mo. The state introduced the following evidence showing that the local option law had been adopted and was in force, as the law of this state, in Washington county, to wit:
(1) The record of the county court of Washington county, being the order for an election to be held to determine whether liquors should be sold in said county. The order was in due form and contained all the recitals prescribed in the statute.
(2) The record of said county court, being the order that notice of said election be given by publication in the Potosi Journal, a weekly newspaper, printed and published in Washington county, in the manner prescribed by the statute.
(3) Proof of publication, showing that the aforesaid order for said election; together with a notice of such election, was duly published, as required by law.
(4) The certificate of the canvassing board, showing the result of said election. This certificate was in proper form. It was therein certified that the clerk of the county court of Washington county, Mo., together with two of the justices of the county court of said county, met for the purpose of casting up the vote cast at the local option election, held in said county on December 10, 1915, and for the purpose of ascertaining the result thereof; and that there was cast at said election 632 votes in favor of the sale of intoxicating liquor and 973 votes against the sale of intoxicating liquor. The vote as cast by each precinct was attached thereto, and the certificate was signed by said clerk and two justices of the county court.
(5) The record of the county court, ordering the result of said election to be published and the notice of the result of said election and proof of publication thereof. Said order contained, among other recitals, the said certificate of the canvassing board, showing the result of said election, in hæc verba; and said certificate was also copied in the published notice. The result of said election was duly published in the manner provided by the statute; the date of the last insertion of the publication being January 5, 1016.
(6) The state next introduced, over the objection of the defendant, an order, nunc pro tune of said county court, showing the result of the adoption of the Local Option Law, as shown by the certificate of the canvassing board.
Said order was made on the 8th day of February, 1918, and the county court adjudged and decreed therein that said order should operate and be of the same force and effect as though the same had been entered upon the records of said court immediately after publication of notice of the result of said election, as certified by said canvassing board.
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