The State v. Goad

• Decision Date: 22 December 1922
• Citation: 246 S.W. 917,296 Mo. 452
• Parties: THE STATE v. W. H. GOAD, Appellant
• Court: Missouri Supreme Court

246 S.W. 917

296 Mo. 452

THE STATE v. W. H. GOAD, Appellant

Supreme Court of Missouri, Second Division

December 22, 1922

Appeal from Stoddard Circuit Court. -- Hon. W. S. C. Walker, Judge.

Transferred to Springfield Court of Appeals.

W. E Edmunds and E. R. Lentz for appellant.

(1) The defendant was indicted, tried and convicted for violation of the legislative act, charged with issuing a prescription for whisky without having a permit under that act, but at the time he did have a permit issued under the Congressional act authorizing him to prescribe intoxicating liquors as provided in this act. The evidence further shows that before issuing said prescription he complied with the requirements of said act. Defendant offered in evidence the permit issued to him under the Congressional act, and relied upon the same as a defense in this cause. The court refused to admit the said permit in evidence, and declared from the bench that it was no defense to this prosecution. This action of the court assails the validity of said Federal statute and vests the jurisdiction of this appeal in the Supreme Court and not in the Court of Appeals. Mo. Constitution, art. 6, sec. 1; Central Nat. Bank v. Hazeltine, 73 Mo.App. 60; White Live Stock Com. Co. v. Railway Co., 157 Mo 518. (2) The question here presented, is new and necessarily one of first impression with the court. The question here is whether, when two legislative bodies are given concurrent powers to legislate upon the same subject, both enact laws with substantially the same provisions, both providing that permits may be issued to physicians to prescribe intoxicating liquors upon substantially the same terms, the defendant obtains a permit under the Federal act and makes a prescription, he is indicted under the State act, he offers in evidence his Federal permit, as a defense and justification for his act, which is rejected, does the permit issued by one of the concurrent laws protect the holder from prosecution under the other concurrent law for doing same act? Or must he have a permit under both of the concurrent laws? We contend that a permit under either of these concurrent laws renders the holders immune from prosecution under the other for the same act. As we see it the whole question turns upon the meaning that is to be given to the word concurrent as here used. (3) The permit issued by the Commissioner of Internal Revenue to the defendant authorizing him to prescribe intoxicating liquor for medical purposes was proper, relevant, competent and material testimony in this case and was a complete defense to the prosecution against defendant in this case. The court erred in refusing to admit the said permit in evidence and in holding that it constituted no defense in this case.

Jesse W. Barrett, Attorney-General, and Marshall Campbell, Special Assistant Attorney-General, for respondent.

WALKER, J. Higbee, P. J., concurs; David E. Blair, J., dissents.

OPINION

WALKER, J.

The appellant was indicted, tried, convicted and fined for issuing a prescription as a practicing physician for the use of intoxicating liquors without having obtained a permit so to do as required by Section 6592, Revised Statutes 1919. The offense with which the appellant is charged is a misdemeanor. Thus classified, the Supreme Court is without jurisdiction to entertain this appeal unless the record discloses that the construction of the Constitution of the United States or of this State was necessary to a determination of the matter at issue, or for a like reason the validity of a Federal statute was drawn in question. [Sec. 12, Art. 6, Mo. Constitution.]

The only reference to either the Federal or the State Constitution is that found in an instruction asked by the appellant and refused by the court, which is in the following language:

"5. The court instructs the jury that under the law and facts of this case they will acquit the defendant for the reason that the law under which this prosecution was had is unconstitutional and void because it contravenes the provisions of Section 28 of Article 4, Section 11 of Article 2, Section 32 of Article 2, of the Constitution of the State of Missouri, Article 4, Article 9, of the Amendments to the Constitution of the United States, and Section 2 of Article 4 of the Constitution of the United States."

I. In view of the condition of the record, which we must presume, in the absence of a showing to the contrary, is correct, we may for the time pass without determining the timeliness of the objection to the validity of the statute upon which the prosecution is based. The record discloses a fact more vitally affecting defendant's contention in this behalf. It is elementary in our appellate procedure that an exception having been saved, in this instance to the refusal of an instruction, the error complained of must be preserved by incorporating it in the motion for a new trial. [Elley v. Caldwell, 158 Mo. 372, 59 S.W. 111; Baker v. Kansas City Ry. Co., 107 Mo. 230, 17 S.W. 816; Morgner v. Kister, 42 Mo. 466; Hope Lumber Co. v. Stewart, 241 S.W. (Mo. App.) l. c. 680.] As we said in Littlefield v. Littlefield, 272 Mo. 163, 197 S.W. 1057, not only must the constitutional question be timely raised and decided by the court, but it must be preserved for review.

Supplementary to the fact that the contention has not been preserved, we held in Bealmer v. Insurance Co., 281 Mo. 495, 220 S.W. 954, in defining the manner in which this question should be raised to entitle it to consideration, that the mere assertion, as here, that the State statute is in conflict with certain numbered sections of the Constitution without a statement of their nature or the facts which create the conflict, will not confer jurisdiction. To a like effect is the ruling in State v. Swift & Co., 270 Mo. 694, 195 S.W. 996; Canning & Packing Co. v. Evans, 238 Mo. 599, 142 S.W. 319; State v. Christopher, 212 Mo. 244, 110 S.W. 697; Chapman v. Adams, 230 S.W. l. c. 81.

Other than as stated, no effort was made to preserve this point. Whether the contention be regarded as having lost its vitality in not being preserved or in having been abandoned by the appellant, it is eliminated from the record as constituting a basis for our jurisdiction. [Little River Dr. Dist. v. Houck, 282 Mo. 458, 222 S.W. 384; Moore v. U. Rys. Co., 256 Mo. 165, 165 S.W. 304; ...