State v. Schatt

• Decision Date: 07 January 1908
• Citation: 128 Mo. App. 622,107 S.W. 10
• Parties: STATE v. SCHATT.
• Court: Missouri Court of Appeals

107 S.W. 10

128 Mo. App. 622

STATE v. SCHATT.

St. Louis Court of Appeals. Missouri.

January 7, 1908.

1. CRIMINAL LAW — APPEAL — VENUE — SUFFICIENCY OF EVIDENCE.

On a trial for performing labor as a barber on Sunday, the trial having proceeded as though it was taken for granted that defendant's barber shop where he performed the labor was in Union Station, in St. Louis, and, aside from the fact being in issue by the plea of not guilty, there having been no controversy about the matter, the fact that the offense was committed in St. Louis, though it cannot be presumed, and though there was no direct proof of it, was sufficiently proved; several witnesses having stated that they resided in St. Louis, and mentioned their places of business therein, and spoken of defendant's place of business as the "Terminal Barber Shop in the Union Station" as though it were near by, or at least not outside the city, and said that they saw him barbering therein on the Sunday in question, one of them saying he "went up there" to get a shave, and several of the witnesses saying they entered defendant's shop from the midway in Union Station, this midway being well known as being an important adjunct to the Union Station in St. Louis.

2. SUNDAY — WORKS OF NECESSITY — BARBERING.

As a matter of law it is not a work of necessity, within the exception to Rev. St. 1899, § 2240 [Ann. St. 1906, p. 1420], declaring it an offense to labor on Sunday, for a barber to ply his usual avocation for compensation on Sunday, merely for the accommodation or convenience of the traveling public, or to shave one who comes to his shop on that day as a matter of convenience.

Appeal from St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Frank J. Schatt was convicted of violating the Sunday law, and appeals. Affirmed.

Hiram N. Moore, for appellant. Phillips W. Moss, for the State.

NORTONI, J.

1. The defendant is a barber, and proprietor of the Terminal Barber Shop, situate in the Union Station at the city of St. Louis. He was tried and convicted on a charge of performing labor, that of a barber, on the Sabbath Day. The first argument addressed to the court for a reversal of the judgment is that there is no evidence in the record showing the offense to have been committed in the city of St. Louis. In other words, it is said there is a total failure of proof with respect to the venue of the offense. The criminal law is penal, and therefore the rules requiring precision in averment and strictness of procedure obtain in the full measure of their application. The law is so jealous of our liberties, and so solicitous in the matter of safeguarding the inalienable rights of the citizen, that it enforces the influence of the principle referred to alike in each and every cause where penal provisions are invoked against the individual. In furtherance of this principle no intendments go in favor of the government and against the citizen. Whatever presumptions of the law obtain at all are in favor of the good conduct, laudable motives, and correct action of the individual: and so it is the law presumes one charged with an offense to be innocent, and affixes the burden upon the government, affirming his guilt, to establish it by competent proof, and that, too, beyond a reasonable doubt. In consonance with these principles the proposition is ascertained and certain that the evidence must affirmatively show the offense to have been committed within the jurisdiction of the court where the proceeding, on account of the infraction of the law, originated; otherwise, the prosecution will fail. This is true for the reason neither intendment nor presumption of law will go in aid of and to supply this jurisdictional fact. Gordon v. State, 4 Mo. 375; State v. Burns, 48 Mo. 438. However, the law is reasonable and just with respect to this, as it is in all other matters, and therefore the courts have determined that, inasmuch as the question of venue or jurisdiction over an offense is one of fact, it may be established like any other fact in the case, as well by circumstances or legitimate inferences from other or collateral facts in proof as by direct and positive evidence. State v. Burns, 48 Mo. 438: State v. Sanders, 106 Mo. 188, 17 S. W. 223; State v. Hill, 96 Mo. 357, 10 S. W. 28; State v. McGinnis, 76 Mo. 326: State v. Chamberlain, 89 Mo. 129, 1 S. W. 145; State v. Miller, 93 Mo. 263, 6 S. W. 57; State v. Ruth, 14 Mo. App. 226; State v. Fitzporter, 16 Mo. App. 282; State v. Roach, 64 Mo. App. 413.

There is no direct proof that the offense was committed in the city of St. Louis. This being true, it is important to ascertain whether or not there are other facts in proof from which it may be reasonably inferred that the offense was in fact committed within the jurisdiction of the court. Now, several witnesses stated they resided in St. Louis, and mentioned their places of business on well-known streets, etc. They spoke of the defendant's place of business as the "Terminal Barber Shop" in the Union Station, and said they saw him barbering therein on Sunday, May 26, 1907. Witness Wade gave evidence to the effect that he is proprietor of Walhalla Hall, located at Tenth and Franklin avenue, in the city of St. Louis; that he knew the defendant, who owned the barber shop at Union Station; spoke as though he was familiar with the defendant's shop, and said, "I went up there" to get a shave. The witness Girard said he lived at 2318 Olive street, St. Louis, Mo.; is a barber by trade, employed at 310 North Jefferson avenue; that he knew the defendant, and saw him laboring, shaving and massaging Wade, in his shop at Union Station at the time mentioned. The witness Clark said he worked at 24 South Tenth street, and was present Sunday, May 26, 1907; saw the defendant, employed as a barber, shaving and massaging the witness Wade, in defendant's shop at Union Station. Some of the witnesses said they entered the defendant's shop, which was open for business as usual, from the midway in Union Station. This midway is well known to Missourians as being an important adjunct to the Union Station in St. Louis. Several of the witnesses, after saying they resided in St. Louis, spoke of the defendant's shop at the Union Station as though it were near by, or at least not outside of the city. In truth, although no witness said, in so many words, that either the defendant's shop or the Union Station is located in St. Louis, nevertheless no candid mind can follow the proof without being impressed by numerous circumstances and inferences from other established facts in the case that the offense was committed in St. Louis. These inferences, each and all, point to but one barber shop in but one Union Station, and that is at St. Louis. Such a conclusion seems irresistible from reading the testimony, and, in these circumstances, we are quite clear the reasonable inferences arising from the testimony were sufficient for reference to the jury, especially in view of the fact that the case proceeded in the trial court as though the matter was taken for granted. The question was referred to the jury by the trial court in an instruction as follows: "You are therefore instructed that if you believe and find from the evidence that Frank J. Schatt, the defendant, in a barber shop at Union Station in the city of St. Louis and state of Missouri, did," etc. The jury found the issue, affirming the offense to have been committed within the city. The inferences from facts in proof constitute substantial evidence tending to support this finding. If there be substantial evidence, although it consists entirely of inferences from other facts in proof, it will be sufficient to support the finding under the instruction of the court in cases such as this, where the matter is not the subject of special controversy. State v. Sanders, 106 Mo. 188, 17 S. W. 223; State v. Chamberlain, 89 Mo. 129, 1 S. W. 145; State v. Burns, 48 Mo. 438; State v. Miller, 93 Mo. 263, 6 S. W. 57.

In view of the fact that there is no direct proof on the question, it may not be improper to point out the trend of judicial opinion given in like circumstances in the state. In State v. Burns, 48 Mo. 438, there was no direct proof that the offense was committed in St. Louis county. Nevertheless the conviction, which was for murder in the first degree, was sustained by our Supreme Court. The witnesses all spoke of the murder as having taken place on Mullanphy street, but it was not stated the street was in St. Louis county. It appears, however, that the case proceeded in the trial court as though the fact of the crime having been committed in St. Louis county, if committed at all, was practically conceded. In the opinion it is said the indictment charged, and the court required the jury to find, the crime was committed in St. Louis county. There was no special controversy over the matter in the trial of the cause, and a diagram was exhibited showing the location of the house and how situated. It was determined, in this state of the case, the judgment should not be disturbed, especially if the inferences raised a violent presumption in support of the verdict. It is certain that the inferences arising in the case now in judgment, tending to point St. Louis as the venue of the offense, are more potent to that end than those appearing in the opinion last above cited, given by our Supreme Court. In State v. Ruth, 14 Mo. App. 226, the offense charged was the larceny of a coat in the city of St. Louis. The evidence mentioned No. 1203 Washington avenue, without designating any particular city or county. On the trial it was "rather taken for granted" that, if the offense was committed at all, it transpired in the city of St. Louis. The court recited that the witnesses mentioned several well-known streets in the city of St. Louis, and laid stress in the opinion upon the fact that the venue of the offense was "rather taken for granted" in the...