State v. Robertson

• Decision Date: 07 February 1910
• Citation: State v. Robertson, 125 S.W. 215, 142 Mo. App. 38 (Mo. App. 1910)
• Parties: STATE v. ROBERTSON.
• Court: Missouri Court of Appeals

125 S.W. 215

142 Mo. App. 38

STATE v. ROBERTSON.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. INTOXICATING LIQUORS (§ 39) — LOCAL OPTION ELECTION — INVALIDITY — BURDEN OF PROOF.

In a prosecution for violating the local option law, the burden of showing the invalidity of the vote on the local option question is on the defendant.

2. INTOXICATING LIQUORS (§ 39) — LOCAL OPTION ELECTION — RECORD.

The records of the county court relating to the adoption of the local option law need not show proof that the notice was published, where they show that publication was ordered, as the law presumes that the publication was made as ordered; the burden being on accused to show the contrary.

3. INTOXICATING LIQUORS (§ 33) — LOCAL OPTION ELECTION — NOTICE — PUBLICATION — STATUTES.

Rev. St. 1899, § 3029 (Ann. St. 1906, p. 1736), provides that notice of a local option election shall be given by a publication in some newspaper published in the county for four consecutive weeks, the last insertion to be within 10 days next before the election, and provides that such other notice may be given as the county court or municipal body ordering the election may think proper to give general publicity to the election. Held, that only the first part of the section was mandatory, and that the court having ordered publication of notice of such election in a specified newspaper for four consecutive weeks it was not necessary that the court under the later clause of the section should require publication in another newspaper for such length of time but that it properly provided for such other publication for two weeks only.

4. INTOXICATING LIQUORS (§ 155) — SALE BY PHARMACIST — PRESCRIPTION BY PHYSICIAN.

Where a physician is a pharmacist and the owner of a drug store he may sell intoxicating liquor on a prescription written by himself, provided it complies with the form prescribed by Rev. St. 1899, § 3047 (Ann. St. 1906, p. 1746).

5. INTOXICATING LIQUORS (§ 155) — SALE BY PHARMACIST — PRESCRIPTIONS.

Where a physician issues a prescription in regular form for intoxicating liquor, the druggist may presume that it was issued in good faith, and is authorized to sell the liquor therein prescribed.

6. INTOXICATING LIQUORS (§ 155) — SALE BY DRUGGIST — PHYSICIAN'S PRESCRIPTION.

Where defendant, acting as a physician, the owner of a drug store and a pharmacist, is charged with an illegal sale of liquor, he may not shield himself behind a sham prescription which he has fraudulently fabricated to cover the offense.

7. INTOXICATING LIQUORS (§ 239) — SALE BY DRUGGIST — PRESCRIPTION.

Under Rev. St. 1899, § 3047 (Ann. St. 1906, p. 1746), authorizing the sale of liquor by a pharmacist on a prescription, first had and obtained from some regular registered and practicing physician, an instruction requiring that such prescription, to be a defense to a prosecution of a druggist for the sale of liquor, must have been issued at the request of the party who obtained the liquor, was erroneous.

8. INTOXICATING LIQUORS (§ 238) — SALE BY DRUGGIST — PHYSICIAN'S PRESCRIPTION — GOOD FAITH — QUESTION FOR JURY.

Where a druggist, charged with illegally selling intoxicating liquors, justifies under a physician's prescription, the good faith of the sale should be submitted to the jury.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

James A. Robertson was convicted of violating the local option law, and he appeals. Reversed and remanded.

G. Purd Hays, S. E. Bronson, and G. A. Watson, for appellant. Fred W. Barrett, for respondent.

NIXON, P. J.

This was a criminal action commenced by the prosecuting attorney of Christian county by information charging that the appellant, contrary to the provisions of the local option law then in force in said county, unlawfully sold one pint of whisky. Upon trial before a jury, appellant was found guilty, and his punishment assessed at a fine of $300. The case is here for our consideration on appeal. Appellant assigns as grounds for reversal (1) that under the evidence the local option law was not adopted in the county; and (2) that the trial court gave improper instructions and refused to give proper instructions.

1. The appellant was tried on the theory that the local option law had been adopted in Christian county. There was no specific finding of such fact by the court, but the instructions directing the jury as to the assessment of the punishment proceeded on that theory, and we are authorized to believe that the court found that the local option law was effective in the county at the time the offense was committed. The validity of the local option law in Christian county was upheld by the Supreme Court of this state in the case of State v. McCord, 207 Mo. 519, 106 S. W. 27, 123 Am. St. Rep. 410. But in that case, the only question raised, discussed, and passed upon by the court was as to the sufficiency of the petition upon which the county court ordered the election. Neither side in this case claims that decision to be such a former adjudication as to foreclose the issues raised in this record. The question urged upon our attention is as to the sufficiency of the notice of the local option election. The burden of showing the invalidity of the vote on the local option question — being a matter of defense — rests upon the defendant. The records of the county court relating to the adoption of the local option law need not show proof that the notice was published; where they show that publication was ordered, the burden of showing a failure of such publication is then on the defendant, the law presuming that the publication was made as ordered. State v. Oliphant, 128 Mo. App. 252, 107 S. W. 32; State v. Bush, 136 Mo. App. 608, 118 S. W. 670; State v. Foreman, 121 Mo. App. 502, 97 S. W. 269. The state in this case introduced in evidence the records of the county court showing the presentation of a legal petition for a vote on the question of local option, the finding of the county court as to its sufficiency, and the order that an election be held. The record as to giving notice is as follows: "Notice of said election to be printed in the Christian County Republican four consecutive weeks, and in the Billings Times two weeks." As we have stated, there being no evidence introduced either by the state or the defendant showing that any publication was made, the presumption of law is that the notice as required by the county court record was made in conformity to such order and published in the county in the Christian County Republican four consecutive weeks, and that the last insertion therein was within 10 days before the election, and also published in the Billings Times 2 weeks. So that the principal question presented for our consideration is whether the order as to notice was such a compliance with the statute as to make the election valid.

The statute regulating such elections provides (section 3029, Rev. St. 1899 [Ann. St. 1906, p. 1736]): "Notice of such election shall be given by publication in some newspaper published in the county, and such notice shall be published in such newspaper for four consecutive weeks, and the last insertion shall be within ten days next before such election, * * *." It will be seen that the order of the county court requiring the notice to be published in the Christian County Republican was in precise compliance with the statute. But the above section continues in this language: "* * * and such other notice may be given as the county court or municipal body ordering such election may think proper, in order to give general publicity to the election." It is over this latter clause that the contest is made in this case, it being claimed by appellant that the election was illegal because the county court ordered that the notice of the election should be given in the Billings Times only two weeks instead of four weeks. In construing this section of the statutes, it has been held that, if the notice of the election complies with the requirements of the section by being published in some newspaper in the county for four consecutive weeks, it will be sufficient, though the body ordering the election failed to give other notice, as "other notice is by the statute discretionary with the council; and this, too, even though an ordinance of the city may require a certain special proclamation of the mayor as notice of any municipal election." State ex rel. v. Weeks, 38 Mo. App. 566. This section again came under consideration in the St. Louis Court of Appeals in a case involving the validity of the local option election in Lincoln county. In that case, it appeared that the Lincoln county court ordered that the notice be published as follows: "It is further ordered by the court that notice of said election be given by publication in the Troy Free Press, the Elsberry Democrat, and the Silex Index, three weekly newspapers printed and published in Lincoln county, for four consecutive weeks, the last insertion to be within 10 days next before the 28th day of October, 1905." It further appeared in said case that the notice thus ordered published was published according to order in the Troy Free Press and in the Silex Index the required four weeks; but as to the third paper — the Elsberry Democrat — it appeared that the publication was continued only three weeks, and that its publication therein was suspended at the end of that time. In construing the latter clause of section 3029, hereinbefore set out, the court held that the notice of the election was insufficient and consequently that the election held in pursuance of it was void; that the county court, having decided in their discretion that it was necessary to publish the notice in three papers for four consecutive weeks "to give general publicity to the election," strict compliance with the order was requisite; that, the county court ordering the election being of the...