State v. Zehnder

• Decision Date: 16 June 1914
• Docket Number: No. 1276.,1276.
• Citation: 182 Mo. App. 176,168 S.W. 666
• Parties: STATE v. ZEHNDER et al.
• Court: Missouri Court of Appeals

168 S.W. 666

182 Mo. A. 176

STATE v. ZEHNDER et al.

No. 1276.

Springfield Court of Appeals. Missouri.

June 16, 1914.

Rehearing Denied July 7, 1914.

1. INDICTMENT AND INFORMATION (§ 51) — FORMAL REQUISITES—VERIFICATION—SIGNATURE.

A signed affidavit of the prosecuting attorney not being essential to the verification of an information, the court committed no error in permitting such attorney to sign after the jury was sworn.

2. INTOXICATING LIQUORS (§ 205)—CRIMINAL PROSECUTIONS—INFORMATION—SUFFICIENCY.

An information under the local option law, charging that the law was in full force and effect in the county, was sufficient; it not being essential to aver that the law had been "adopted."

3. CRIMINAL LAW (§ 202)—FORMER JEOPARDY —IDENTITY OF OFFENSES.

In a prosecution for violation of the local option laws, a plea of former conviction was not good where the evidence disclosed a different sale to a different individual from that for which the former conviction was had.

4. INTOXICATING LIQUORS (§ 224)—CRIMINAL PROSECUTIONS—BURDEN OF PROOF.

In a prosecution of officers of a corporation for violation of the local option laws, defended on the ground that they were incidental sales by a bona fide corporation to members only, the burden was on defendants to prove such facts as would bring them within the exception to the local option laws, if there were such an exception.

5. CRIMINAL LAW (§ 330)—EVIDENCE—BURDEN OF PROOF.

Even when it is essential to allege, in an information, a negative which lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party.

6. INTOXICATING LIQUORS (§ 146)—OFFENSES —PERSONS LIABLE—INCORPORATED CLUBS.

Since the purpose of the local option laws is to absolutely prohibit the sale of intoxicating liquors and not merely to regulate, an incidental sale of intoxicating liquors in local option territory, even by a bona fide incorporated club or society to a member thereof, is unlawful.

7. COURTS (§ 91) — PREVIOUS DECISIONS AS CONTROLLING — DECISION OF SUPREME COURT.

The Court of Appeals is bound to follow the last ruling of the Supreme Court, which alone can change its former rulings.

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 laws, 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 in this case were convicted of violating the local option law in Phelps county, Mo., on substantially the same evidence, except as to different sales, as was produced and the conviction had in the case of state against the same defendants, in which an opinion has been this day filed in this court. 168 S. W. 661. The same objection is urged in this case to the information as in the other case, with the exception that, after the jury was sworn and the prosecuting attorney was reading the information to the jury, he discovered that the affidavit was not signed, and asked and obtained leave of court to sign the same, and did so immediately preceding the jurat of the officer who administered the oath in this and in the other case. To this action of the court defendants excepted and assign error thereon. As a signed affidavit of the prosecuting attorney is not essential to a compliance with the statute, as we have held in the other case, no harm was done or error committed by the court in allowing this signature to be affixed at that time. The verification was good without such signature, and what we have said in the other case fully disposes of this point.

The information in the present case charges, as did the information in the other case, that the local option law was in full force and effect in Phelps county at the time the offense was committed, and the appellants are making the same objection in this case as in that case as to the sufficiency of the information for want of an averment that said law had been adopted. Our ruling in the other case, which is adopted here, disposes of this contention, and the point is ruled against the appellants.

The appellants also pleaded the former conviction in bar to this action, but the testimony discloses a different sale and to a different individual in this case, and the instructions were confined to this other and different sale, which the jury found to be a different sale than those upon which the conviction was had in the former case. The assigned error on the plea in bar cannot therefore be upheld.

In addition to what is shown as to the German-American Alliance or Germania Verein in the former case, in the case at bar there is some evidence tending to prove that it is a corporation organized under the laws of this state, and that the tickets were only issued to members of the corporation, and that the corporation owned the property and goods located at the place where the Germania Verein was operating and was disposing of the intoxicants to such members only by means of the tickets issued and punched as in the other case.

The defendants requested, and the court refused to give, the following instruction:

"The court instructs the jury that if you believe and find from the evidence that the liquors kept and served in the building in which the alleged sales are claimed to have been made was the property of the German-American Alliance of Rolla, Mo. (a corporation), and purchased by the funds of such corporation, and that the parties to whom such liquors were served were members of such corporation, and that such corporation was organized in good faith and not for the purpose of evading the liquor laws, and that the defendants, as members or officers of such corporation, served or delivered liquors to witness Paulsell, and at the time the said Paulsell was a member in good standing of said corporation, you will find the defendants and each of them not guilty."

The appellants complain of the refusal of this instruction and contend that they are exempt from prosecution and conviction for selling intoxicating liquors under the holding of the Supreme Court in the case of State ex rel. v. St. Louis Club, 125 Mo. 308, 319, 28 S. W. 604, 26 L. R. A. 573. We think, however, that the facts upon which that decision is based are entirely different from the facts involved here. It is there said that the chief purpose of that organization was the advancement by social intercourse of the bodily and mental health of its members; that there was no common bar to which any and all of the members could repair at any time and order a drink; that the membership was limited and qualifications were required of applicants; that an initiation fee of $100 and annual dues of $80 were charged. In the case at bar there is no evidence that tends to prove that the organization was a bona fide one or that it comes within the class of corporations...