State v. Tallo
| Decision Date | 05 June 1925 |
| Docket Number | No. 26047.,26047. |
| Citation | 274 S.W. 466 |
| Parties | STATE v. TALLO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction; Calvin N. Miller, Judge.
Vito Tallo was convicted for offering for sale liquid having appearance, odor, and taste of beer, without label and full name of brewer thereon, and he appeals. Reversed and remanded.
Lena Frank and Ernet F. Oakley, Jr., both of St. Louis, for appellant.
Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State.
On July 12, 1923, Ben Philipson, associate prosecuting attorney of the St. Louis court of criminal correction, filed in said court a verified information, charging therein that Vito Tallo and Joseph Palermo, of the city of St. Louis, Mo., on the 11th day of July, 1923, did unlawfully and willfully sell and offer for sale in bottles, kegs, and barrels liquid having the appearance, odor, and taste of beer, without bearing the original label and full name of the brewer or manufacturer thereof, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.
Defendants were duly arraigned and entered their plea of not guilty. They filed a demurrer to the information, which was overruled. Thereupon they filed a motion to quash the information, and to suppress and exclude certain evidence, which said motion was overruled. At the conclusion of the state's evidence a demurrer thereto was sustained as to said Joseph Palermo, and overruled as to defendant Vito Tallo. Joseph Palermo was thereupon discharged from the case. At the conclusion of the whole case, appellant demurred to the evidence, which was overruled, and he offered no evidence in his own behalf. The case was tried by the court, and defendant found guilty. His punishment was assessed at a term of 60 days in the workhouse of the city of St. Louis, and he was required to pay the costs, etc. A motion for a new trial was filed in due time, and on August 6, 1923, overruled. A motion in arrest of judgment was also filed and overruled. Judgment was entered, in accordance with the finding of the court, that appellant be imprisoned in the workhouse aforesaid for 60 days, etc.
Defendant was granted an appeal to the St. Louis Court of Appeals, and a superseders appeal bond given by him. The St. Louis Court of Appeals, on account of the constitutional questions presented in the case, transferred the same to this court. On November 30, 1923, appellant filed in said court of criminal correction his bill of exceptions in this cause. The bond aforesaid was given for the appearance of defendant in the St. Louis Court of Appeals, etc.
The testimony of the state, presented at the trial, is substantially as follows:
Rhodes C. Harper, a police officer connected with the St. Louis police department, testifying for the state, stated that on July 11, 1923, he arrested defendant Vito Tallo, and later Joseph Palermo, in a saloon at 2223 Washington avenue; that Joseph Palermo conducted the place, and Vito Tallo was the bartender; that Tallo was behind the bar at the time they entered; that they walked up to the bar, and saw defendant Tallo step up to the bar with his hands down, and then they smelled liquor; that they asked for some beverage, and Tallo put out a bottle, and they asked what it was, and he said he did not know, and they asked how he knew what he was selling, and he said he did not know. Witness was asked to look at a bottle, and he said it looked like the bottle he took from the saloon, and had his name on the tag. There was no name on the bottle, nor on the cork, to indicate by whom the contents were manufactured, nor writing of any kind on the bottle. Witness said Officer Nolan was with him at the time, and this all occurred in the city of St. Louis, Mo.
On cross-examination, witness stated that he went into the saloon' and smelled the odor of alcohol; that he walked behind the bar and found a bottle of some liquor; that he supposed defendant Tallo knew they were police officers, and that he placed him under arrest for finding a bottle; that Tallo sold the bottle of beverage to witness after they had found the other bottle, defendant knowing they were police officers; that he asked for a drink of beverage, and gave him money right at that time, and defendant Tallo evidently took it; that the bottle was sold to them after they had searched the place; that defendant took the bottle from the ice box; that the bottle was cold, and he drank part' of the contents; that he asked for the cap that was on the bottle and defendant gave it to him; that he reached down for it; that he paid a dime for the beverage, but did not know what was done with the dime; that no search was made for it; that it was not marked; that they saw defendant pick it up; that they tried to make a case of a sale of unlabeled beverage, and were in there for that purpose; that a Capt. Matthews was with them, also, but not in uniform; that the beverage they got there did not contain any intoxicating liquor; that he did not know whether there had been a label on the bottle previously; that the bottle was cold and wet; that he could not swear whether it was the identical cap that came off the bottle; that he found similar caps and bottles in the place.
Charles Nolan, a police officer connected with the St. Louis police department, testifying for the state, stated that he assisted in the arrest; that they went in the soft drink parlor, and Tallo made some motion with his hands, and they smelled liquor, and he scooped up some of the supposed whisky; that Officer Harper asked for a bottle of beverage, and defendant got that bottle out of the ice box, and the officer drank part of it and then placed Tallo under arrest; that a bottle offered in evidence was the same bottle, and there were no labels nor marks on it indicating what the contents were; that he saw Tallo put a cork on the `bottle, but didn't know whether it was the same one; that it did not bear the name of the contents of the bottle; that he asked Tallo if that was his place, and he said he was just working there. The bottle was offered in evidence and marked "State's Exhibit A."
On cross-examination, witness stated that, after searching the place, and finding the alcohol, and dumping it into a bottle, Officer Harper then asked defendant Tallo for a bottle of beverage; that Tallo said nothing — just pulled it out of the ice box; that Officer Harper's exact words were, "Let me have a nice cold bottle of beverage"; that defendant Tallo knew they were police officers from coming in there before; that Officer Harper did not tell him to sell him that bottle of beverage; that Harper asked the bartender, Tallo, for a cold bottle of beverage, and Tallo, knowing they were police officers, obeyed him; that he saw defendant pick up some money, a dime, but did not know what he did with it; that the bottle was cold and wet.
On redirect examination the witness testified that there was no label on the bottle at the time it was served to his brother officer, and he saw Harper lay down a dime in payment for the bottle, and the bartender (Tallo) take it up. That was all the testimony offered by the state. The defendant introduced no testimony on his own behalf. The remaining questions presented in the record for our consideration, will be disposed of in the opinion.
Opinion.I. The information herein is based on section 9 of an act approved April 3, 1923 (Session Laws of 1923, p. 239). Appellant contends that the above act is contrary to the requirements of section 28, article 4, of the Constitution of Missouri, in this: That the title of said act is insufficient, because it contains more than one subject, because the subjects of the act are not clearly expressed in the title, and `because there is no reference in the title to the provisions contained in section 9 of the act, which attempts to make it unlawful to sell or offer for sale liquid having the appearance, odor, and taste of beer without original labels on the container, and such provisions are not germane to the subjects mentioned in the title.
The title to above act, as reported in the Laws of 1923, at page 236, reads as follows:
"An act to provide for the exercise of the police powers of the state, by and through prohibiting the manufacture, possession, transportation sale and disposition of intoxicating liquors; defining soft drink bars; providing for the granting of permits to duly licensed and reputable physicians to prescribe ethyl alcohol and wine for medical purposes; the issuance of permits to registered pharmacists or druggists to fill such prescriptions; prohibiting the possession and use of machinery and equipment for the distilling, or brewing or fermentation of ethyl alcohol or wine; providing for the issuance and service of search warrants and other methods of enforcing the law of this act and other laws of this state pertaining to intoxicating liquors, and prescribing penalties for violation of this act and all other laws of this state pertaining to the manufacture, possession, transportation, sale and disposition of intoxicating liquors `and providing for the issuance and service of search warrants by judges of courts of record having jurisdiction in criminal cases, and by the justices of the peace' and providing penalties for violation."
Sections 1, 6, 7, and 9 read as follows:
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