State v. Wilson

• Decision Date: 05 February 1912
• Citation: 143 S.W. 534
• Parties: STATE v. WILSON.
• Court: Missouri Court of Appeals

143 S.W. 534

STATE v. WILSON.

Springfield Court of Appeals. Missouri.

February 5, 1912.

1. INTOXICATING LIQUORS (§ 238)—OFFENSES —ADOPTION OF LOCAL OPTION—QUESTION OF LAW.

The question whether the local option law has been adopted in any county is one of law for the court.

2. CRIMINAL LAW (§ 304)—EVIDENCE—JUDICIAL NOTICE—ADOPTION OF LOCAL OPTION LAW.

The courts of this state cannot take judicial notice of the adoption of the local option law in any particular county.

3. CRIMINAL LAW (§ 663)—INTOXICATING LIQUORS (§ 39)—EVIDENCE OF ADOPTION OF LOCAL OPTION LAW.

In a prosecution for a violation of the local option law, where the prosecuting attorney stated that he desired to offer in evidence the record of the county court showing the adoption of the local option law in that county, and the proceedings of the county court concerning its adoption, produced the record, and called the attention of the court to the pages offered in evidence, and no objection to its admission, or request that it be read, was made by the defendant, the record was in evidence for all purposes, and was sufficient proof of the adoption of the law, although not read to the court, or by the court, and hence a peremptory instruction on the ground that the adoption of the law had not been proved was properly refused.

4. CRIMINAL LAW (§ 1111)—APPEAL—BILL OF EXCEPTIONS—CONCLUSIVENESS.

A bill of exceptions, when signed by the judge and filed, becomes a part of the record, and must be accepted by the appellate court as

true until corrected in the manner pointed out by law.

5. CRIMINAL LAW (§ 1163)—APPEAL—BURDEN OF SHOWING ERROR.

On an appeal, the burden is on the appellant to show by the record that prejudicial error was committed.

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

H. M. Wilson was convicted of a violation of the local option law, and he appeals. Affirmed.

G. A. Watson, for appellant. Fred W. Barrett, for the State.

NIXON, P. J.

The appellant was prosecuted and convicted of violating the local option law alleged to be in force in Christian county, and has appealed.

To prove the adoption of the local option law in said county, the state's attorney called as a witness the deputy county clerk, and the record thereupon discloses the following proceedings: "Q. This is one of the records of your office (indicating)? A. Yes, sir. Record 10. Q. This is a record of the proceedings of the county court? A. Yes, sir. Plaintiff now desires to offer in evidence Record 10, County Court Record, page 426, showing the adoption of the local option law; also page 427, showing notice; also page 285, showing the result; also page 413, the order submitting the proposition to the voters, and continued on page 414; also page 493, the nunc pro tunc entry, which is continued on page 494." No objection of any kind to this offer appears in the record.

Appellant's sole ground for reversal is that the trial court erred in refusing to give his proffered peremptory instruction at the close of all the evidence which was tendered on the theory that there was no sufficient evidence that the local option law was in force in Christian county. Appellant contends that it was not enough to merely offer the record of the county court in evidence as was done in this case.

It has long been the settled rule that the question whether the local option law has been adopted is one of law for the court. State v. Searcy, 39 Mo. App. 393, 396; State v. Brown, 130 Mo. App. 214, 109 S. W. 99.

In some jurisdictions it is held that the courts may take judicial notice of the fact that the local option law has become operative by popular vote in a particular district, but Missouri is not one of them. 23 Cyc. 91.

In this state the adoption of the local option law is established prima facie by the state by the production of a certified copy of the result of the election, as spread upon the records of the county court in compliance with that law, and proof that the requisite subsequent publication of the result was made. State v. Searcy, 111 Mo. 236, 20 S. W. 186; State v. Kimmel, 156 Mo. App., loc. cit. 465, 137 S. W. 329; State v. O'Kelley, 156 Mo. App., loc. cit. 494, 137 S. W. 332. We do not think the state's attorney in every case and under all circumstances is required to read to the judge the contents of the county court record offered. If the judge had read it, or had it read to him, so that he was familiar with it and had passed on it on other occasions, it is obvious that it would serve no useful purpose to read it again. As we have said, the adoption of the local option law is a question of law. The jury has nothing to do with it, so that the failure of the state's attorney to read it could have no bearing one way or the other in the particular case. Nor is this case like those cases where judicial notice is taken of the adoption of the local option law, for in such cases the record is not brought into court as a part of the state's prima facie case. No advantage was lost by this defendant by reason of the failure of the state's attorney to read the record because the record was there in court where defendant could examine it and attack it in any way he chose. No contention is made here that the record of the county court was in fact defective, or that the local option law was not in fact operative in Christian county. The quantum of proof necessary to convince the judge that the local option law was in force in the county may well vary. We think that when the prosecuting attorney states that he desires to offer in evidence the record of the county court showing the adoption of the local option law...