State v. Robertson

• Citation: 172 S.W. 6
• Decision Date: 19 December 1914
• Docket Number: No. 18380.,18380.
• Parties: STATE ex rel. ZEHNDER et al. v. ROBERTSON et al.
• Court: Missouri Supreme Court

172 S.W. 6

STATE ex rel. ZEHNDER et al. v. ROBERTSON et al.

No. 18380.

Supreme Court of Missouri.

December 19, 1914.

1. COURTS (§ 231)—CONFLICT OF DECISIONS— CERTIORARI.

Where a case is brought from the Court of Appeals to the Supreme Court because of conflict of decision, only those rulings which conflict with rulings of the Supreme Court will be considered.

2. COURTS (§ 231)—CONFLICT OF DECISION— CERTIORARI.

Where a case is brought up from the Court of Appeals by certiorari because of conflict of decision, it is immaterial whether the decision of the Supreme Court is correct, but the only question is the fact of conflict.

3. INTOXICATING LIQUORS (§ 205) — LOCAL OPTION—INFORMATION.

An information alleging that the local option law (Rev. St. 1909, §§ 7238-7246) was in full force and effect in the county is broad enough to make the information good, within the rule of law announced by the Supreme Court that the allegation must cover the fact that the law had been previously adopted within the territory and that it was in force therein at the time.

4. INDICTMENT AND INFORMATION (§ 75)— MISDEMEANORS.

The same strictness of pleading in misdemeanors is not required as is required in felony cases.

In Banc. Certiorari by the State, on relation of Albert Zehnder and Adalbert Kolb, against the Honorable W. R. Robertson, Honorable John T. Sturgis, and Honorable John S. Farrington, members of the Circuit Court of Appeals. Writ quashed.

Frank H. Farris, J. J. Crites, and J. A. Watson, all of Rolla, for relators. Corrie L. Arthur, of Rolla (C. C. Bland, of Rolla, of counsel), for respondents.

GRAVES, J.

Certiorari to the Springfield Court of Appeals. To our writ the judges of that court have made due return. From the record before us in the instant case it appears that Albert Zehnder, Adalbert Kolb, and Fritz Diir were convicted in the circuit court of Phelps county for the sale of liquor in violation of the local option law, then in force in said county. From this judgment of conviction they appealed to the Springfield Court of Appeals, and in that court the judgment was affirmed as to Zehnder and Kolb, but reversed and remanded as to Diir. The information upon which the defendants in the circuit court were convicted reads:

"Corrie L. Arthur, prosecuting attorney in and for the county of Phelps, in the state of Missouri, informs the court that on the first day of April, 1913, and at all times hereinafter mentioned, the provisions of article 3, chapter 63, R. S. 1909, known as the Local Option Law, was in full force and effect in the aforesaid county of Phelps, and that the defendants thereafter, to wit, on the fifth day of December, 1913, at and in the said county of Phelps, did directly and indirectly sell intoxicating liquors, to wit, one pint of beer, at and for the sum of ten cents, and one pint of whisky at and for the sum of ten cents without then and there having a dramshop license or other legal authority authorizing them so to do, against the peace and dignity of the state.

                                 Corrie L. Arthur
                

"Prosecuting Attorney Phelps County, Mo.

"Corrie L. Arthur, prosecuting attorney, being sworn upon his oath, says that the above and foregoing information and the facts therein stated, are true according to his best knowledge, information and belief. Subscribed and sworn to before me, the undersigned notary public, this sixth day of December, 1913.

"[Seal.] Clark C. Bland, Notary Public."

The sufficiency of this information was challenged by motion to quash, motion for new trial, and motion in arrest of judgment in the circuit court, and again challenged in the Court of Appeals, throughout the record there. That court held that the information was sufficient in language and in form, and that the verification thereto was good. This latter question as to the verification, whilst a live one, in the Court of Appeals, is not such here. This for the reason that it is not charged that the ruling of the Court of Appeals upon that matter is in conflict with any ruling of this court. In the instant case it is charged that the ruling of the Court of Appeals as to the sufficiency of the information is in conflict with the ruling of this court in the cases of State v. Dugan, 110 Mo. loc. cit. 143, 19 S. W. 195, and State v. Searcy, 111 Mo. 236, 20 S. W. 186. The point made is that the information does not allege the adoption of the local option law in Phelps county, and that the opinion of the Court of Appeals conflicts with the view of this court in regard to the sufficiency of the information. The issue is therefore sharp and pointed.

I. Counsel for respondents have gone to the different states and present an array of authorities bearing upon the sufficiency of the information in this case. Some of these go to the length that the court will take judicial notice of the adoption of such laws. But in certiorari of the kind and character involved here, we are not really concerned as to what the true rule should be, but are only concerned in what the rule is in Missouri, as established by this court prior to the time the Court of Appeals acted. The purpose of the writ of certiorari to an inferior appellate court is to keep their rulings in harmony with our rulings upon the same subject, so that all appellate opinions may speak as with one voice upon any one particular question. It would hardly be expected in this kind of a case that we would quash the Court of Appeals judgment, if it was made clear that they had followed...