State v. Salley

• Decision Date: 10 October 1919
• Docket Number: No. 20286.,20286.
• Citation: 215 S.W. 241
• Parties: STATE ex rel. ALTON, Pros. Atty., v. SALLEY.
• Court: Missouri Supreme Court

215 S.W. 241

STATE ex rel. ALTON, Pros. Atty., v. SALLEY.

No. 20286.

Supreme Court of Missouri, Division No. 1.

October 10, 1919.

Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.

Bill by the State of Missouri, on the relation of T. W, Alton, Prosecuting Attorney of Benton County, against W. It. Salley. Judgment for plaintiff, and defendant appeals to the Court of Appeals. Transferred from that court on ground of conflict in decision. Reversed.

C. C. Barrett, of Warsaw, and W. A. Dollarhide, of Hermitage, for appellant.

T. W. Alton, of Warsaw, for respondent.

RAGLAND, C.

This appeal was first heard by the Kansas City Court of Appeals, where a decision was rendered. One of the judges, however, deeming the decision contrary to the previous rulings of this court, the cause was transferred here. We have carefully read and considered the entire record, and fully concur in the majority opinion of that court, which was handed down at its October term, 1916. That opinion, which we adopt as the opinion of this court, is as follows:

"This proceeding was begun by bill in equity charging defendant with maintaining a public nuisance and praying that he be enjoined and restrained from continuing such nuisance. The trial court sustained the bill, and defendant appealed.

"The defendant is the proprietor of a drug store in the village of Fairfield, Benton county, and the charge is that he sold intoxicating liquors illegally, and that he so conducted and operated his business that it was a public nuisance, as that term is defined by the law. The defense is that there was a total failure to make a case against defendant, and that this failure not only appears from the whole evidence, but from the testimony introduced by plaintiff alone, and so we have concluded. At the opening of the trial, this statement was made by the court: `I want to say right now I am going to, in this case, disregard the technical rules of evidence. What I am interested in, in this particular case, is to get the facts, and in order that we may get the facts I am going to disregard, in this particular case, the technical rules of evidence ordinarily enforced in the trial of a law case, it being an equitable case before the court; and that will apply to both sides of the case.' Under that ruling the substance of the greater part of the evidence was of hearsay character.

"The great preponderance of the evidence introduced by plaintiff showed that the defendant kept a `nice drug store; he has patent medicines, toilet articles, drug sundries, and groceries; so far as I know I think he does a nice business.' The witnesses stated that they never saw any disorder there; there were no disreputable characters there; no dangerous men; no quarreling or fighting. The best of the people, including the women of the village, traded with defendant, going in and out continuously. Most of the witnesses for the state testified that they and their families traded with defendant, and that he was a well-respected citizen of the community.

"Witnesses for the state were allowed to say what they had heard, or thought, or suspected concerning defendant's store as being the place where persons got their liquor who were seen intoxicated in the country anywhere from one to ten miles distant, notwithstanding the well proven fact that intoxicants were sold at Warsaw, the county seat, and taken to the country, and that liquors were shipped from there to different places.

"One witness, testifying over a space of ten years, stated that on one occasion an intoxicated man broke a showcase in his store, and at another time an intoxicated man went into his telephone booth and vomited there. He did not know, but supposed they got their liquor from defendant; at the same time he admitted that whisky went out from Warsaw daily. He further testified generally that he considered a man who sold liquor a public nuisance. He further said that, barring the sale of liquor, defendant kept a nice, clean business. He was asked if he was `ever attracted over there [defendant's store] by reason of any knock-downs, fights, or anything of that kind,' and answered, `No;' and that he never bad seen `any thieves, burglars, robbers, murderers, cut-throats, or people of that class congregated there,' though `I have seen bunches congregated around there; I don't suppose there were any thieves or robbers among them.'

"As a fair sample of a large part of the evidence, Mr. Wisdom, who lived 3½ miles in the country, testified that `we had a girl, that worked for us right away after camp meeting, that told us she got out of the way in the road one night to keep from getting run over; she had to jump out of the road, and lost her overshoes, and almost crippled herself; and they charged up and got off to assist her, and she told them to keep back and keep out of the way; she would take care of herself.'

"Again, a Mr. Suitor, living in the town of Iconium, in an adjoining county, and 10 miles west from defendant's town of Fairfield, testifying in answer to a question whether `he knew of any specific case where they have gone to Fairfield and got it,' answered, `Well, only my son; he went to Fairfield and got three gallons quite a while back, so he says' This witness stated that `nearly every two weeks there is a drunken crowd in Iconium; suppose they all come from Fairfield, from what I can find out by the talk' He also testified that `Saturday night a man came to me two-thirds drunk and wanted to borrow a dollar to go to Fairfield— borrow a dollar from me; I know what he wanted to go to Fairfield with a dollar for.'

"Another witness, living 8 miles from Fairfield, testified that the father of a boy told him that the boy told the father that he furnished another boy the money, and that the latter went to defendant's and bought liquor.

"A witness was asked if the sale of intoxicating liquor conducted by defendant was a nuisance. The question was objected to on the ground that no foundation was laid for it by proof that the liquors came from defendant. The court stated that, `strictly speaking, your objection is good; but in this case I have decided to...