State v. Rawlings

• Citation: 134 S.W. 530,232 Mo. 544
• Parties: THE STATE v. VICTOR L. RAWLINGS, Appellant
• Decision Date: 14 February 1911
• Court: United States State Supreme Court of Missouri

134 S.W. 530

232 Mo. 544

THE STATE v. VICTOR L. RAWLINGS, Appellant

Supreme Court of Missouri, Second Division

February 14, 1911

Appeal from Lawrence Circuit Court. -- Hon. W. N. Evans, Special Judge.

Reversed and remanded.

James A. Potter for appellant; Edw. J. White of counsel.

(1) The information is fatally defective in failing to allege that the defendant was engaged in running an "order house" or was acting as an agent for such house or in that capacity. State v. Price, 229 Mo. 670. (2) The information is fatally defective in failing to allege that the person for whom defendant delivered the liquor was not authorized by law to deal in intoxicating liquors. State v. Price, 229 Mo. 670; Laws 1907, pp. 231-232. (2) The court erred in overruling defendant's motion to quash the information in this case. (a) The act under which defendant is being prosecuted is unconstitutional and void because it violates section 28, of article 4, of the Constitution. The body of the act nowhere refers to persons "running order houses," but embraces persons of every class whether engaged in the order house business or not, or whether they have any connection whatever with an order house. Moreover the title says that it shall be unlawful for a person running an order house to deliver liquor to persons having no license to deal in same, while the body of the act says that it shall be unlawful for any person who is not a dramshop keeper, or by law authorized to sell liquor, to "order for receive, keep, store or deliver," as the agent of any other person, regardless of whether that other person has a license to deal in liquor. We understand that this court in the case of State v. Price, supra, held that this act did not contain more than one subject-matter. The point that we now raise, that the subject "is not clearly expressed in the title," was not urged in the Price case, and the court's opinion on that point is not final. (b) Section two of the Act of 1907, before referred to, is unconstitutional for the reason that it violates section 30 of article 2, of the Missouri Constitution. The above section is as follows: "That no person shall be deprived of life, liberty or property without due process of law." Section two of the Act of 1907 makes it a crime to "keep, store or deliver" intoxicating liquors to another person in any "county" that has adopted local option. It must be remembered that the Legislature has previously classified local option territory in this State into cities having over twenty-five hundred inhabitants and the remainder of the counties outside of such cities. Under this section of the act of the Legislature cities are not referred to at all. That is to say, under section 2 of this act it would be no crime to keep, store or deliver intoxicating liquor for another in any city that has adopted local option. It is only a crime in a county that has adopted local option. It cannot be said that the word county includes all territory in the county, including cities of over twenty-five hundred inhabitants, for that construction would make it a crime to do an act in a city where another law says the act is legal. The second section of the act is class legislation. State v. Loomis, 115 Mo. 307; State ex rel. v. Ashbrook, 144 Mo. 375; In re Jilz, 3 Mo.App. 243. (4) The court erred in admitting evidence that defendant ordered liquor for witness Williams, because the information did not charge that defendant was engaged in running an order house, nor connected with an order house, nor that he was habitually engaged in ordering liquor for others. State v. Price, 229 Mo. 670. The court erred in admitting evidence that defendant "received" liquor for Williams. The title to the act nowhere mentions "receiving" liquors for another. The body of the act being broader than the title on this point, the act is void as far as the crime of "receiving" liquor is concerned. (5) The court erred in giving instruction 1, at the request of the State. Under this instruction the court told the jury that if they found and believed from the evidence that the defendant did "order for, receive, keep, store or deliver as the agent or otherwise of one Will Williams any whiskey" then they should find the defendant guilty. This instruction is wrong for the reason that it did not require the jury to find that the defendant was engaged in running an order house, or that he was the agent of any such house, or that he was habitually engaged in ordering liquors for others. State v. Price 229 Mo. 670. This instruction is wrong in that it justifies a conviction if defendant received any whiskey for Williams. The title to the act under which defendant was prosecuted nowhere indicates that such an act as receiving liquor shall constitute a crime. Laws 1907, pp. 231-232. This instruction is wrong for the reason that it justifies a conviction of defendant on the grounds that he kept or stored whiskey for Williams. There was no evidence upon which to base such an instruction. The only evidence in the case upon which such an instruction could be based was that the whiskey had been in the place of business "not over five minutes." The words to "keep and to store" have a well-defined meaning in the law. These words always imply the idea of continuity or habit and do not refer to the mere temporary deposit of a thing. Mosely v. State, 74 Ga. 404; Renshaw v. Mo. St. Mutual, 103 Mo. 595; O'Neill v. Insurance Co., 3 N.Y. 122; Insurance Co. v. Lawrence, 61 Ky. 9; Eubanks v. State, 17 Ala. 181; Commonwealth v. Palmer, 134 Mass. 537; People v. Rice, 103 Mich. 350; State v. Miller, 36 A. 795; Commonwealth v. Patterson, 138 Mass. 495; Spring field Ins. Co. v. Wade, 58 L. R. A. 714; Mears v. Ins. Co., 92 Pa. St. 15. The instruction is wrong in that it fails to require the jury to find that defendant delivered the whiskey to a person who was not authorized by law to deal in whiskey. State v. Price, 229 Mo. 670.

Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.

(1) Appellant's first contention, that the act under which he is prosecuted is obnoxious to section 28 of article 4 of the State Constitution, in that it contains more than one subject, and that the same is not clearly expressed in the title, has but recently received the careful attention of this court, and has been ruled adversely to his claims. State v. Price, 229 Mo. 670. It is a fact within common knowledge that there is perhaps no law whose enforcement has been more strenuously and cunningly resisted by tricks, schemes and covers, than the law looking towards the regulation of the liquor traffic, a business inherently illegal and continued only through sufferance. "For ways that are dark and tricks that are vain, the Chinee is an unsophisticated heathen compared to the bootlegger." State v. Melton, 130 Mo.App. 266. Many means of regulation, among them local option and licensed dramshops with restricted privileges, have been adopted, but regardless of the peculiar and particular methods applied, they have all dealt with one subject -- intoxicating liquor -- and have sought but one end, the regulation of the traffic and the subsequent suppression of a conceded evil. It is equally well known, and as to this the Legislature was presumably no more ignorant than the rest of mankind, that prior to the enactment of the statute here involved, the ends of regulation in both local option and dramshop communities were frequently defeated by designing persons who resorted to the practice of taking orders as the agent of the purchaser, and then delivering same to his alleged principal, thus hiding the vendor and concealing himself behind the gloss of agency. This practice could not be successfully prevented without amendments of the nature now under discussion. State v. Winfield, 115 Mo. 428. As the law stood before the present statute was passed it was a question of fact as to whether the person taking the order was the agent of the vendor or vendee, and this led to much uncertainty and many abuses, substantially the same facts sometimes affording the basis of a conviction in one case and failing in another. State v. Melton, 130 Mo.App. 265; State v. Winfield, 115 Mo. 428. In view of the history of the times and the legal situation at the time of the passage of this act, there is nothing strange in the Legislature putting to rest all such uncertainties and declaring as a matter of law, that the act of ordering for or delivering to another, regardless of all questions of agency, any intoxicating liquor in any community, whether under dramshop or local option regulation, should constitute an offense. The title of the act in question clearly expresses such a purpose. There is nothing misleading by the use of the term "order house" in the first portion of the title, and the use of the term "person" instead of "order house" in the body of the act. The term "order house," as there used, does not apply merely to some particular, indefinable kind of an "order house," but to any person or persons who receive orders and send them to persons who fill them, thus carrying on what can be properly termed an order house business. That the title fully satisfies the constitutional provision with reference to the subject being clearly expressed therein, is manifest from other decisions of this court. State v. Doering, 194 Mo. 409; Lynch v. Murphy, 119 Mo. 171; Cox v. Railroad, 174 Mo. 63; O'Connor v. Transit Co., 198 Mo. 637; State ex rel. v. Mead, 71 Mo. 268. (2) (a) Appellant's second and third challenges on constitutional grounds go only to section 2 of the act, which is as follows: "No person shall keep, store or deliver for or to another person, in any county that has adopted, or may hereafter adopt, the...