The State v. Fitch
| Decision Date | 26 May 1914 |
| Citation | 167 S.W. 980,258 Mo. 345 |
| Parties | THE STATE v. JOHN O'KELLEY and W. D. FITCH, Appellants |
| Court | Missouri Supreme Court |
Appeal from Dade Circuit Court -- Hon. B. G. Thurman, Judge.
Affirmed.
Howard Ragsdale and J. O. Patterson for appellants.
The court erred in refusing to grant defendants a new trial upon their motion and showing that there had been no arraignment or waiver of the same and that the record failed to disclose any arraignment or waiver. The arraignment of one accused on a criminal charge is an indispensable prerequisite to a legal trial. State v. Witherspoon, 231 Mo. 706; State v. Moss, 164 Mo.App. 379; State v. Mikel, 125 Mo.App 289.
John T Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) We desire first to call the attention of the court to Sec. 5230 R. S. 1909, which reads as follows: "The provisions of law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases so far as they are in their nature applicable thereto, subject to the provisions contained in any statute." In this section is found this sentence: "To enforce the remedies and protect the rights of the parties," etc. This is a broad and comprehensive sentence, and the State is evidently included in the term "parties." (2) A case in the appellate court should be decided upon the same theory upon which it was tried in the court below, and the case at bar having been tried upon the theory that a plea of not guilty had been entered on appeal, the case will be treated as if such plea had been entered. Brier v. Bank, 225 Mo. 638; St. Louis v. Contracting Co., 210 Mo. 502; Kilpatrick v. Wiley, 197 Mo. 171; Drug Co. v. Byber, 179 Mo. 369; Land Co. v. Zeitter, 182 Mo. 265; Dice v. Hamilton, 178 Mo. 90; Walker v. Owen, 79 Mo. 563; Mitchell v. Railroad, 125 Mo. 11; State v. Greene, 66 Iowa 11; State v. Hayes, 67 Iowa 27; People v. Tower, 17 N.Y.S. 395; People v. Johnson, 110 N.Y. 134; People v. Meyers, 2 Hun, 6; People v. Bradner, 107 N.Y. 1; People v. McHale, 15 N.Y.S. 496; Spicer v. People, 11 Ill.App. 294; State v. Thompson, 95 Iowa 464; State v. Glave, 51 Kan. 330; State v. Lewis, 10 Kan. 157; State v. Cassady, 12 Kan. 550; U.S. v. Molloy, 31 F. 19; State v. Bowman, 78 Iowa 519; Moon v. State, 51 Ark. 130; Hayden v. State, 55 Ark. 342, and cases cited in Attorney-General's brief; Johns v. State, 104 Ind. 557; Weir v. State, 115 Ind. 210; State v. Foster, 40 Iowa 303; Meece v. Corn, 1 Ky. L. R. 337; State v. Reddington, 7 S.D. 368; Allyn v. State, 21 Neb. 593; State v. Wilson, 42 Kan. 587; People v. Osterhout, 34 Hun, 260; Hobbs v. State, 86 Ark. 360. (3) Appellant, by announcing "ready for trial," and proceeding to trial without objection, waived the provisions of Sec. 5165, R. S. 1909, requiring plea of not guilty to be entered. Frye v. Railroad, 200 Mo. 408; Murphy v. Railroad, 248 Mo. 33; Christenen v. Tank Works, 233 Ill. 142; Wefferman v. Ragsdale, 199 Mo. 382; Bragg v. Street Ry. Co., 192 Mo. 355; Price v. Hallett, 138 Mo. 561; Railway v. Davis, 197 Mo. 680; Hill v. Drug Co., 140 Mo. 437; Stewart v. Onthwaite, 141 Mo. 572; Gordon v. Parke, 202 Mo. 248; Zeikel v. Douglas, 88 Mo. 385; Taussig v. Railroad, 186 Mo. 284; Sec. 5162, R. S. 1909; State v. Nelson, 132 Mo. 196; State v. Schmidt, 137 Mo. 269; State v. Terry, 201 Mo. 701. Also, see criminal cases under point 2. (4) The statute requiring a plea of not guilty to be entered should now be construed to be merely directory. Secs. 5115, 5165, R. S. 1909; 2 Lewis's Sutherland, Stat. Const. (2 Ed.), sec. 611, p. 1116.
Defendants were convicted of a violation of the Local Option Law and sentenced each to ten months in jail and to pay a fine of three hundred dollars. They appealed to the Springfield Court of Appeals, where the judgment was affirmed. Judge Farrington dissented on the ground that the majority opinion is in conflict with State v. Hopper, 142 Mo. 478, 44 S.W. 272, and other cases there set out, and the appeal was transferred to this court.
Defendants conceded that the Local Option Law was in force in Dade county. They were partners in business as pseudo-druggists; neither had a license as a pharmacist; nor did they have a pharmacist in their employ. Dr. E. Spyers, a retired physician, having no license as a pharmacist, was employed by defendants. A sale was made of a quart of whiskey to Joe Lindley, under what defendants claimed was a prescription written by Dr. Spyers, signed The sale was made by O'Kelley in the store of defendants. The evidence is contradictory as to whether it was in April, July or August, and as to whether defendant Fitch was present. There is no evidence to show that the sale was contrary to the wishes or instructions of the defendant Fitch.
Among other instructions, the court told the jury that if defendants were partners in the store and engaged in the sale of liquor and that O'Kelley was in general management of the business and sold liquor in violation of law, then both were guilty.
The record does not show that defendants were formally arraigned or that they entered a formal plea of any kind. The record proper shows that when the case was called for trial, the defendants appeared in person and by attorneys, and both sides announced ready for trial. The bill of exceptions shows that at the opening of the trial the information was read to the jury by the prosecuting attorney and that counsel for defendants said "No statement at this time except we plead not guilty."
I. The defendants, not having a pharmacist's license, and having no licensed pharmacist in their employ, were not druggists in contemplation of the statute, and had no right to sell whiskey on a prescription or without it. [State v. Workman, 75 Mo.App. 454; State v. Jordan, 87 Mo.App. 420.] Such being the case, it is unnecessary to pass upon the sufficiency of the prescription.
II. The fact that defendant Fitch was not present when the sale was made does not entitle him to an acquittal. By the instruction given the jury were required to find that the defendants were partners in the store and engaged in the sale of liquor. As above stated, neither of the defendants was a pharmacist, nor did they have a pharmacist in their employ, and every sale made by them was unlawful. The very nature of the partnership, so far as the sale of liquor was concerned, was a conspiracy to violate the law, and under these circumstances each was liable for a sale made by the other.
III. Appellants say that the failure of the record to show a formal arraignment and plea is fatal; although the defendants announced that they were ready for trial, and their counsel, when called on for a statement to the jury, said, "No statement except we plead not guilty," and although they took part in the trial without protest or objection to such failure.
In the short period of our history as a territory and a State, criminal procedure has undergone a transformation which may well be called a revolution. By the common law a person charged with a felony was not permitted to have a copy of the indictment, nor was he allowed to have the assistance of counsel, except occasionally to argue a point of law. When arraigned at the bar, if he wilfully refused to plead, he could be sentenced when the charge was treason as on a conviction. In other cases he could be sentenced and imprisoned "strong and hard" -- 4 Blackstone, p. 325. On his trial neither he nor his wife could testify in his defense. He was not allowed a bill of exceptions, and hence could not be heard in the appellate court on any point involved in the trial save the exceedingly limited number shown by what is known as the record proper.
In 1831, a judgment of conviction in a capital case, Samuels v. State, 3 Mo. 68, was affirmed without the consideration of any question arising on the evidence or instructions. Such being the case, this court was able to consider only the mere stage on which the great drama of the trial had been enacted. It could not know from the record the age, character or the condition in life of the accused or of the deceased, and could know nothing of the guilt or innocence of the accused.
Humane and considerate judges, knowing and appreciating their own inability to see the true merits in criminal cases on appeal were driven by the inequity and injustice of the law to the opposite extreme of looking vigilantly for errors of form and procedure having no reference to the substantial merits of the case. The Supreme Court of Massachusetts in 1807 in Commonwealth v. Hardy, 2 Mass. 303, said: "If even to quibble is at any time justifiable a man may quibble for his life."
We will now review the change wrought by our Legislature. As early as 1808, 1 Ter. Laws, page 218, sec. 37, provision was made for furnishing the accused with a copy of the indictment and with the assistance of counsel. This right was further enlarged by Revised Statutes 1825, page 319, section 22. By the revision of 1835, defendant was allowed to have his bill of exceptions. By the Act of 1877, he and his wife were made competent witnesses in his behalf. Later on provisions were made for stenographic reports of the trial; and, where the accused is not financially able to pay for a copy of the stenographic report, it is furnished to him free. On appeal, even though the defendant files no assignment of errors or brief in this...
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