State v. Polk

• Decision Date: 02 May 1910
• Citation: 127 S.W. 933,144 Mo.App. 326
• Parties: STATE OF MISSOURI, Respondent, v. LEE POLK, Appellant
• Court: Missouri Court of Appeals

127 S.W. 933

144 Mo.App. 326

STATE OF MISSOURI, Respondent, v. LEE POLK, Appellant

Court of Appeals of Missouri, Springfield

May 2, 1910

Appeal from McDonald Circuit Court.--Hon. F. C. Johnston, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James A. Sturges for appellant.

(1) It was error to submit the case to the jury on the entire information, as the verdict of guilty on the first count on the trial before the justice was an acquittal on the second and third counts. State v. Whitton, 68 Mo. 91; State v. Hays, 78 Mo. 609; State v Patterson, 116 Mo. 511. (2) The information was not drawn to cover one violation in three counts, but each count stated a separate and distinct violation, hence the general verdict was not good; the defendant was entitled to know on which count he was convicted. State v. Harmon, 106 Mo. 657; State v. Nitch, 79 Mo.App. 99; State v Jackson, 72 Mo.App. 59; State v. Bedell, 35 Mo.App. 551.

Joseph S. Long, Prosecuting Attorney, for respondent.

(1) It was not error for the court to submit the cause to the jury on the entire information, it was proper for the court to submit to the jury any testimony of a sale of intoxicating liquor, by defendant, at any time within the Statute of Limitation, time not being the essence of the offense. State v. Hughes, 82 Mo. 88; State v. Small, 31 Mo. 197; State v. Stephens, 70 Mo.App. 560; State v. Heinze, 45 Mo.App. 411. (2) The notice for holding the Local Option Law election in this case is sufficient. State ex rel. v. Tucker, 32 Mo.App. 628; State v. Hutton, 39 Mo.App. 415; State v Kaufman, 45 Mo.App. 659; Cruzen v. Stephens, 123 Mo. 345; Young v. Downey, 150 Mo. 317; Haywood v. Russell, 44 Mo. 254.

OPINION

NIXON, P. J.

The appellant was convicted in a justice's court of violating the Local Option Law of McDonald county. The information contained three counts. The jury found appellant guilty on the first count, and assessed his punishment at a fine of three hundred dollars. An appeal was perfected to the circuit court where trial de novo was had. The appellant thereupon introduced in evidence the transcript of the justice showing the conviction on the first count alone, and requested an instruction to the effect that the evidence showed only a violation of the law as charged in the second and third counts, and that such evidence could not be considered, "for the reason that the defendant stands acquitted as charged in said counts by a verdict of the jury rendered on the trial in the justice's court, from which the appeal in this case was taken." This requested instruction was refused and the jury returned the following verdict: "We the jury find the defendant guilty, and assess his punishment at a fine of five hundred dollars. A. W. Chenoweth, Foreman."

I. It will be noticed that there is nothing in this verdict to indicate on what count or counts the defendant was convicted; nor did the instructions of the court limit the inquiry to the charge contained in the first count.

The case of State v. Hall (decided at the last term), 141 Mo.App. 701, 125 S.W. 229, is somewhat in point. There, the indictment was in four counts, but conviction was had on the first count only, there being an acquittal on the other counts. The defendant appealed and the St. Louis Court of Appeals held the indictment insufficient and discharged the defendant. [130 Mo.App. 170, 108 S.W. 1077.] A new information was filed. Defendant pleaded "not guilty" and filed a special plea of former acquittal. The court say: "On the former trial of the defendant he was acquitted on three counts of the indictment, and convicted on one only. The State could not try him again for the offenses alleged in the three counts of the indictment on which the jury returned a verdict of not guilty." See, also, State v. Hays, 78 Mo. 609; State v. McCue, 39 Mo. 112; State v. Patterson, 116 Mo. l. c. 505, 22 S.W. 696; State v. Kattleman, 25 Mo. 105.

True, in the case at bar, there was not a direct acquittal on the second and third counts in the justice's court. But the indirect acquittal had the same effect. Sec. 2373, Revised Statutes 1899, provides: "When a defendant shall have been acquitted upon a trial, on the merits and facts, . . . he may plead such acquittal in bar to any subsequent accusation for the same offense, notwithstanding any defect in form or substance in the indictment upon which such acquittal was had." The circuit court was therefore in error in not limiting the scope of the inquiry to the charge contained in the first count. When the defendant had been convicted on a trial of only one of the three counts, on appeal, he could not again be tried on the counts on which he had been acquitted. His appeal on the count on which he was convicted did not appeal the counts on which he had been acquitted.

II. When the State attempted to prove the adoption of the Local Option Law in McDonald county, defendant objected for the reason that the county court record sought to be introduced showed upon its face that the notice of the local option election was not given as is required by law, and that said notice could not have been given the length of time required by the statutes of this State. Appellant contends that there must be five insertions in a weekly newspaper in order to give the twenty-eight days' notice required by the statute, and bases his...