State v. Zehnder

• Decision Date: 16 June 1914
• Docket Number: No. 1275.,1275.
• Citation: 182 Mo. App. 161,168 S.W. 661
• Parties: STATE v. ZEHNDER et al.
• Court: Missouri Court of Appeals

168 S.W. 661

182 Mo. A. 161

STATE v. ZEHNDER et al.

No. 1275.

Springfield Court of Appeals. Missouri.

June 16, 1914.

Rehearing Denied July 7, 1914.

1. INDICTMENT AND INFORMATION (§ 52) — VERIFICATION—SIGNATURE BY PROSECUTOR.

Under Rev. St. 1909, § 5057, requiring an information to be verified by the oath of the prosecuting attorney or by some person competent to testify as a witness, where an information was signed by the prosecuting attorney, and a notary public certified under his seal that the prosecuting attorney made oath thereto that the facts alleged were true, etc., it was sufficient, though the affidavit was not signed by the attorney.

2. CRIMINAL LAW (§ 304)—JUDICIAL NOTICE —NOTARY PUBLIC.

Courts will take judicial notice of the seals of notaries public.

3. INTOXICATING LIQUORS (§ 205)—CRIMINAL PROSECUTION—INFORMATION— SUFFICIENCY.

An information for violation of the local option law, which charged that, at the date of the alleged offense, "the provisions of Rev. St. 1909, §§ 7238-7246, known as the local option law, was in full force and effect," was sufficient; it not being necessary to charge that such law had been "adopted."

4. INTOXICATING LIQUORS (§ 146)—OFFENSES —SALE.

Where a person purchases from one person a ticket or other such device to be punched or exchanged for intoxicating liquors, and another person, having charge of such liquors, recognizes the purchasing value of such ticket and exchanges liquors therefor by taking up the ticket or punching it, the transaction is a sale, and both the person selling the ticket and the person dispensing the liquors are equally guilty.

5. INTOXICATING LIQUORS (§ 172)—OFFENSES —PERSONS LIABLE.

Where defendants, officers of a club, aided and assisted a third party, the bartender, in making sales of liquor in violation of the local option laws either by receiving the liquors to be sold or by selling tickets to be used for that purpose, they were equally guilty, since,

in misdemeanors, there are no accessories before the fact, but all who aid, or assist are guilty as principals.

6. INTOXICATING LIQUORS (§ 236)—CRIMINAL PROSECUTIONS—EVIDENCE—SUFFICIENCY.

In a prosecution for violation of the local option laws, wherein it was claimed that defendant, an officer of a club, issued and signed tickets which were exchanged for liquors, the mere fact that the tickets bore his name written thereon was not sufficient evidence to warrant his conviction.

7. INTOXICATING LIQUORS (§ 236)—CRIMINAL PROSECUTIONS—EVIDENCE—SUFFICIENCY.

In a prosecution for violating the local option laws, evidence held to sustain a conviction of one defendant but not as to another.

Robertson, P. J., dissenting in part.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Albert Zehnder, Adalbert Kolb, and Fritz Diirr were convicted of violating the local option law, and they appeal. Affirmed as to Zehnder and Kolb, and reversed and remanded as to Diirr.

Frank H. Farris, J. J. Crites, and J. A. Watson, all of Rolla, for appellants. Corrie L. Arthur and C. C. Bland, both of Rolla, for the State.

STURGIS, J.

The defendants were convicted of violating the local option law theretofore adopted in Phelps county, Mo., 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, 543, 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 1st 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, in discussing the necessary averments in this regard, state that an information is sufficient which alleges that the local option law had been adopted and was in force at the time of the alleged sale. Such holding, however, is different from holding that such averment is essential. We are unable to understand by what process of reasoning, if the local option law was in full force and effect in Phelps county, it could be argued that it had not been adopted.

In State v. Campbell, 137 Mo. App. 105, 108, 119 S. W. 494, where the information did not allege that the local option law had been adopted, but did allege that said law "`was legally approved by the people of Dallas county and went into force and effect in said county on the 15th day of June, 1906, which law has been in effect from and since said date and is at this time in force, * * * did then and there unlawfully sell,' etc.," the court said:

"But we think the indictment is sufficient notwithstanding it fails to use the word `adopted.' To say that the people adopted the local option law is but the statement of a conclusion to the effect that it was in force in the county. And the statement that the law was in force in the county at the time is equivalent to saying that the people had adopted it."

Many of the cases relied on by the appellants involve the discussion where the point was made that, although it was alleged that the local option law had been adopted, yet it was not sufficiently alleged that, at the time the offense was charged to have been committed, the law was yet in force. State v. Hall, 130 Mo. App. 170, 172, 108 S. W. 1077; State v. Jump, 162 S. W. 633. A reading of these cases will show that the court regarded the allegation as to the law being in force as being the essential averment, the absence of which made the information bad in those cases. The law cannot be in force without having been adopted, and so it is usual to allege that it has been adopted and is in...