State v. Zehnder

• Decision Date: 16 June 1914
• Parties: STATE OF MISSOURI, Respondent, v. ALBERT ZEHNDER, ADALBERT KOLB and FRITZ DIIRR, Appellants
• Court: Missouri Court of Appeals

168 S.W. 661

182 Mo.App. 161

STATE OF MISSOURI, Respondent, v. ALBERT ZEHNDER, ADALBERT KOLB and FRITZ DIIRR, Appellants

Court of Appeals of Missouri, Springfield

June 16, 1914

Appeal from Phelps Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED IN PART. REVERSED AND REMANDED IN PART.

Judgment affirmed as to defendants Zehnder and Kolb and reversed and remanded as to defendant Diirr.

Frank H. Farris, J. J. Crites and J. A. Watson for appellants.

(1) The information in this case was not verified as required by law and the attention of the court was called thereto by a timely motion to quash, which motion was overruled and exceptions saved. The case should be reversed. Sec. 5057, R. S. 1909; State v. Bonner, 178 Mo. l. c. 431; State v Hicks, 178 Mo. l. c. 445; State v. Branch, 178 Mo. l. c. 412; State v. Schnettler, 181 Mo. l. c 185; State v. Brown, 181 Mo. l. c. 233; State v. McGee, 181 Mo. l. c. 315; State v. Hanigan, 182 Mo. 15; State v. Decker, 182 Mo. l. c. 184; State v. Gutke, 188 Mo. 424; State v. Kelly, 188 Mo. 450; State v. Lee, 113 Mo.App. l. c. 203; State v. Weyland, 126 Mo.App. l. c. 726. (2) An indictment must contain pointed and specific allegations that the Local Option Law had been adopted and was in force at the time of the alleged sale, for it is material both to allege and prove these things. State v. Hall, 130 Mo.App. l. c. 172; State v. Campbell, 137 Mo.App. l. c. 108; State v. Wright, 161 Mo.App. l. c. 600-601; State v. Gemy, 39 Mo.App. l. c. 399; State v. Hutton, 39 Mo.App. l. c. 416; State v. Prather, 41 Mo.App. l. c. 458; State v. Dougan, 110 Mo. l. c. 143; State v. Wainwright, 154 Mo.App. 654. (3) A fraternal corporation can in good faith dispense liquors to its members without violating any law in Missouri, prohibiting the sale of intoxicating liquors, including the Local Option Law, unless it can be shown that the society or corporation is a mere scheme to sell liquors in defiance of law and this is an issue of fact to be submitted to a jury. State ex rel. v. Pastime Athletic Club, 121 Mo.App. l. c. 86; State ex rel. v. St. Louis Club, 125 Mo. l. c. 319, 320; State ex rel. v. Rod & Gun Club, 121 Mo.App. l. c. 373.

Corrie L. Arthur, Prosecuting Attorney, and C. C. Bland for respondent.

(1) The motion to quash was properly overruled. State v. Webster, 206 Mo. l. c. 576; State v. Hicks, 178 Mo. l. c. 445; State v. Fletcher, 31 Mo.App. 296; State v. Prewett, 61 Mo.App. l. c. 159. (2) The certificate of the notary attested by his hand and seal of office to the oath of the prosecuting attorney to the information imparted the same verity as would the certificate of the clerk of the court attested by its seal. Sec. 10178, R. S. 1909. State v. Boland, 12 Mo.App. 74; Barhydt & Co. v. Alexander & Co., 59 Mo.App. l. c. 194. (3) The statement in the information that the Local Option Law was on the first day of April, 1913, and at all times hereinafter mentioned in full force and effect in the county, was equivalent to a statement that it had been adopted by the voters of the county, went into effect on April 1, 1913, and was in effect on the date the offense was committed. State v. Campbell, 137 Mo.App. 105; State v. Gallatine, 161 S.W. 848; State v. Brown, 151 Mo.App. 349. (4) The information stated all the essential facts and was sufficient. State v. Hall, 130 Mo.App. 170; State v. Merget, 129 Mo.App. 46; State v. Watson, 216 Mo. 426, 431. (5) The sale of intoxicating liquors by the officers or agents of an incorporated club or of a voluntary association in local option territory is illegal. State v. Robinson, 163 Mo.App. 221; State v. Meyers, 162 S.W. 768; State v. Harp and Gehson, 210 Mo. 254; State v. King Knob Club (W. Va.), 46 S.E. 799; Southern Shore County Club v. People, 228 Ill. 75, 119 Am. St. Rep. 417, 81 N.E. 805; State v. Esline Social Club, 73 Md. 97, 20 A. 783; Mahrn v. State, 105 Ga. 709, 32 S.E. 143; City of Chicago v. Mitcher, 183 Ill. 104, 55 N.E. 707. (6) The sale of cards with figures thereon, to be used for purpose of purchasing beer and whiskey, a figure corresponding to the price of the beer and whiskey, being punched out at the time the liquor was furnished was a sale of the liquor so furnished. State v. Harp, 210 Mo. 210; State v. Robinson, 163 Mo.App. 221; State v. Harach, 41 Kas. 87; People v. Law and Order Club, 203 Ill. 127, 67 N.E. 853. (7) There are in misdemeanors, no accessories before the fact. All are principals and may be charged in the indictment as principals. 1 Bishop New Criminal Law, Sec. 655, page 417; Bishop on Statutory Crimes (3 Ed.), Sec. 1024, p. 665; State v. Keeth, 46 Mo.App. 612; Slaughter v. State, 113 Ga. 264, 38 S.E. 854; Reynolds v. Publisher, etc., 155 Mo.App. 612.

STURGIS, J. Farrington, J., concurs. Robertson, P. J., concurs in the disposition of the case as to defendants Zehnder and Kolb, but dissents as to the result reached as to defendant Diirr.

OPINION

STURGIS, J.

The defendants were convicted of violating the Local Option Law theretofore adopted in Phelps county, Missouri, in selling intoxicating liquors in Rolla at a place called the Germania Verein, and have appealed.

The information was attacked by a motion to quash same, which was overruled, exceptions saved and error is assigned thereon here. The objections made to the information is that it was not filed on the official oath of the prosecuting attorney, or on the official oath of any other officer or body authorized to file the same, and was not verified as required by law. The information is signed by the prosecuting attorney, Corrie L. Arthur, and then follows: "Corrie L. Arthur, Prosecuting Attorney, being sworn, upon his oath says 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. Clark C. Bland, Notary Public."

The appellants contend that section 5057, R. S. 1909, which provides that an information shall be verified by the oath of the prosecuting attorney or by the oath of some person competent to testify as a witness has not been complied with in this case and rely on the case of State v. Bonner, 178 Mo. 424, 431, 77 S.W. 463, and a line of cases based thereon. In the Bonner case, supra, and in all the similar cases to which we have been cited by appellants, there was no evidence or pretense that the information had been sworn to by the prosecuting attorney. In the case of State v. Hicks, 178 Mo. 433, 445, 77 S.W. 539, this same point was raised and in discussing the necessity of a verification by the prosecuting attorney or some competent witness to the information, it is said that "the affidavit is not required to be signed by him. It will be observed that the information was in fact signed by the prosecuting attorney, and the clerk of the court in which it was filed having certified under his hand and the seal of the court that the 'prosecuting attorney makes oath and says that the facts stated in the information are true, according to his best knowledge, information and belief,' it was a substantial compliance with the statute." In that case, as here, the information was signed by the prosecuting attorney and the clerk of the court in which it was filed certified under his hand and the seal of the court that the prosecuting attorney made his oath thereto that the facts there alleged were true, according to his best knowledge, information and belief, and the information was held good. That case involved a prosecution for murder in which defendant was convicted in the second degree. The present case is sought to be distinguished from the holding of the Supreme Court in the Hicks case, supra, in this that in that case an officer, of whose official signature and seal the court must take judicial notice, certified that the prosecuting attorney had made the required oath to the information, while here such certification is by a notary public attested by his seal.

The only question to be solved here in disposing of this objection is whether or not in case a notary public of the county has certified under his hand and seal that the required oath was administered, the court should import to his act the same verity as was accorded in the Hicks case to the act of the clerk of the court where the case was pending. Section 10178, R. S. 1909, authorizes notaries public to administer oaths, and Section 10180, R. S. 1909, requires them to authenticate their acts with their official seal, and provides that when so authenticated they shall be received in evidence. In Brown Mfg. Co. v. Gilpin, 120 Mo.App. 130, 134, 96 S.W. 669, it is said, as to an affidavit for an appeal made before a notary public in another State, that: "Courts will take judicial notice of the seals of notaries public, for they are officers recognized by the commercial law of the world." See also State v. Boland, 12 Mo.App. 74. We are of the opinion, therefore, that the record discloses in the case at bar that the information in this case was duly sworn to as required by law.

Another objection urged against the information by appellants is that the charge therein 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," is insufficient and that it is essential to a good information under the Local Option Law to charge that such law had been adopted and was in force at the time of the alleged sale. The appellants rely on a number of cases, State v. Searcy, 39 Mo.App. 393, 399, State v. Hutton, 39 Mo.App. 410, 415, State v. Dugan, 110 Mo. 138, 143, 19 S.W. 195, which...