The State v. Oliphant

• Decision Date: 06 January 1908
• Parties: THE STATE OF MISSOURI, Respondent, v. GEORGE v. OLIPHANT, Appellant
• Court: Kansas Court of Appeals

107 S.W. 32

128 Mo.App. 252

THE STATE OF MISSOURI, Respondent, v. GEORGE v. OLIPHANT, Appellant

Court of Appeals of Missouri, Kansas City

January 6, 1908

Appeal from Harrison Circuit Court.--Hon. Joshua W. Alexander Special Judge.

AFFIRMED.

Judgment affirmed.

J. C Wilson and Barlow & Barlow for appellant.

(1) The statute requires that a notice of the election shall be published in a specified manner before a legal election can be held. Sec. 3029. The entire record of the county court certified by the county clerk, was offered in evidence by the defendant. It fails to show any publication of the notice, nor was there any other proof offered showing such notice. In all of the cases heretofore passed upon by the appellate courts of this State, involving the question, there was full and ample proof aliunde of the publication of the notice. State v. Hutton, 39 Mo.App. 417; State v. Dugan, 110 Mo. 145; Gaston v. Lankin, 115 Mo. 32; Warrensburg v. McHugh, 122 Mo. 652; Waters v. School Dist., 59 Mo.App. 589. (2) Though such facts exist, yet if their existence is not shown in the record, the proceedings are coram non judice. Corrigan v. Morris, 43 Mo.App. 456; Haggard v. Railroad, 63 Mo. 302; State ex rel. v. Court, 66 Mo.App. 96; Langford v. Few, 146 Mo. 142-154; Reed v. Lowe, 163 Mo. 533; Cummings v. Brown, 181 Mo. 711; Bick v. Tanzey, 181 Mo. 515. (3) A recital of the jurisdictional facts is necessary to the validity of the proceedings and to the legal adoption of the law. State ex rel. v. Bird, 108 Mo.App. 163; State ex rel. v. Baldwin, 109 Mo.App. 573. (4) The rule for which we are contending had been enforced and illustrated in a number of recent cases involving the validity of the proceeding of inferior tribunals exercising special statutory powers. Thornbury v. School Dist., 175 Mo. 12; Pace v. Shoe Co., 103 Mo.App. 662; State ex rel. v. Wilson, 99 Mo.App. 675; Tarkio v. Clark, 186 Mo. 285; Patchin v. Durritt, 116 Mo.App. 437; 1 Black on Judg. (2 Ed.), sec. 282; State ex rel. v. Cooper Co. Ct., 66 Mo.App. 96; State ex rel. v. Seibert, 97 Mo.App. 212. (5) The statute requires that a notice of the election shall be published in a specific manner before a legal election can be held. R. S. 1899, sec. 3029; Kelly's Crim. Law (Ed. 1892), secs. 1084-5; State v. Searcy, 39 Mo.App. 393; State v. Hutton, 39 Mo.App. 410. (6) It was not only necessary to allege in the information that the law was adopted and in force in Harrison county, Missouri, but it is also necessary to prove the same. R. S. 1899, sec. 3031; State v. Makin, 41 Mo.App. 99; State v. Prather, 41 Mo.App. 451; Rousey v. Wood, 47 Mo.App. 465; State v. Macy, 72 Mo.App. 431; State v. Hays, 78 Mo. 600; State v. Cleveland, 80 Mo. 108; Hopkins v. Railroad, 79 Mo. 98; Rousey v. Wood, 57 Mo.App. 650. (7) The State's cross-examination of the defendant was a reversible error. R. S. 1899, sec. 2637; Laws 1905, p. 307, sec. 4655A; State v. Bulla, 89 Mo. 595; State v. Turner, 110 Mo. 196; State v. Fullerton, 90 Mo.App. 415; State v. Chamberlain, 89 Mo. 129; State v. Rugan, 68 Mo. 214; State v. McGraw, 74 Mo. 573; State v. Brent, 100 Mo. 531; Krueger v. Railroad, 94 Mo.App. 458; State v. Siegenthaler, 121 Mo.App. 510; Shoe Company v. Hillig, 70 Mo.App. 301; Gunther v. Roy, 74 Mo.App. 597. (8) The expressions of the court on a material issue in the case, in the hearing of the jury, was highly prejudicial to the defendant and constituted reversible error. Rose v. Kansas City, 102 S.W. 578; State v. Turner, 102 S.W. 599; Wright v. Richmond, 21 Mo.App. 81; Thompson on Trials, sec. 219; Schierbaum v. Schemme, 157 Mo. 22; Bailey v. Kansas City, 189 Mo. 503; Wharton, Crim. Evidence, sec. 440; State v. Fullerton, 90 Mo.App. 415, and cases cited.

W. H. Zeazenby for respondent.

(1) The State makes a prima-facie case of the adoption of the local option law by introducing the records of the county court showing the result of the election as spread upon the records of the county court in compliance with section 1 of the statute and by proving that the subsequent publication was made as required by the statute. State v. Searcy, 39 Mo.App. l. c. 407. (2) The court is not bound to instruct the jury that the testimony of detectives or "spotters" is to be received with great caution and distrust. State v. Hoxsie, 15 R. I. 1; State v. Bennett, 40 S.C. 308; State v. Keys, 4 Kan.App. 14; Potter v. State, 92 Ala. 37; Hronek v. People, 134 Ill. 139, 8 L. R. A. 839.

OPINION

JOHNSON, J.

--On information of the prosecuting attorney, defendant was tried and convicted in the circuit court of Harrison county on a charge of violating the local option law and was fined eight hundred dollars. He appealed to this court and advances three grounds on which he relies for a reversal of the judgment. First, that the record shows the local option law was not legally adopted in Harrison county prior to the commission of the offense charged; second, that incompetent evidence prejudicial to defendant was admitted over his objection; and, third, that a cautionary instruction asked by defendant and refused by the court should have been given.

Following the statement in the information that the local option law was adopted in Harrison county on the 17th day of January, 1900, it is alleged therein that on or about the 1st day of April, 1903, defendant unlawfully sold certain intoxicating liquors in said county. At the time stated, defendant was operating a drug store and it appears from the evidence offered by the State that he sold two glasses of whiskey which were drunk by the purchasers behind the prescription case and paid for by one of them. The witness who testified to making the purchase admitted on cross-examination that in a very short time afterward he was employed by the prosecuting attorney as a detective to obtain evidence of illegal sales of intoxicating liquors by druggists in that county and for his services, which covered a period of thirty-two days, was paid $ 500 by the attorney and, in addition, allowed and paid $ 35 for expenses. Further, he admitted that on three occasions, once in Harrison county and twice in Oklahoma, he was prosecuted for the offense of common assault and in each instance entered a plea of guilty. He was the only witness who testified to the illegal sale. Defendant denied making the sale and testified that at the time it was alleged to have occurred he was in Osceola, Iowa, where formerly he had been in the drug business and where he still had some business interests. He was cross-examined in part, as follows:

"Q. You say you removed from Osceola down here? A. Yes, sir.

"Q. You were in business up there were you? A. Yes, sir.

"Q. You were found guilty of selling liquor up there were you not? (Objection.) Tell the jury now if you were not convicted for selling liquor illegally at Osceola, Iowa, in 1899? A. I answered that question once before, I said no; I plead guilty.

"Q. Oh, you plead guilty? A. Yes, sir.

"Q. How many times did you plead guilty, Mr. Oliphant? A. Twice.

"Q. You were in the drug business up there, were you? A. I was in the drug business a short time, about ten months.

"Q. I will ask you if it is not a fact that the court enjoined you from further dealing in liquor of any kind whatsoever in the Third Judicial Circuit of the State of Iowa, on account of the fact of your having been a violator of the liquor laws of that State? (Objection.) A. Yes, sir, that is true.

"Q. When did you say you moved down here? A. I came here in September.

"Q. What year? A. 1899.

"Q. When you came here the indictments were pending against you at Osceola? (Objection.)

"Q. You came here in September, 1899? A. Yes, sir.

"Q. You say you are in the drug business down here? A. I am working in a drugstore.

"Q. Whose drugstore? A. It is known as the Bethany Drug Company.

"Q. Who is the Bethany Drug Company? A. Nettie D. Oliphant was at that time and is.

"Q. And is now? A. Yes, sir.

"Q. And has been all the time? A. Yes, sir.

"Q. Who is Nettie D. Oliphant? A. She is my wife, I guess.

"Q. Your wife? A. Yes, sir.

"Q. Your wife owns the drugstore? A. Yes, sir.

"Q. Did she own it at that time? A. Yes, sir.

"Q. And you are working for your wife? A. Yes, sir.

"Q. On wages? A. Yes, sir."

In rebuttal, the State introduced five witnesses who testified that defendant's general reputation for morality was bad, but on cross-examination, each witness admitted that this reputation rested solely on the belief generally entertained in the community that defendant was a persistent violator of the local option law. A fair example of the character of testimony elicited by the State is found in the following extracts from the cross-examination of one of the witnesses:

"Q. Well, who did you hear talking about this man's reputation for morality, about him individually, his moral character? A. I want to confine it to his business. (Defendant objects.)

"By the Court: What do you man by that? A. I mean that it was the business that he was doing that I was talking about.

"Q. The business he was doing? A. Yes, sir.

"By the Court: I suppose a man's moral character is made up from what he does, find out further.

"Q. You are not now making the statement that you have heard anybody say anything about his moral character, simply, it is the business he is in? Instead of his moral character? A. It is his drugstore, yes, sir; it is the business he was doing--his drugstore.

"By the Court: His character, you say, was made up from that? A. I said what I heard talked about his character was made up from that.

"Q. About his character? A. Yes, sir. . . .

"Q. Just simply because he was in the drug business? A. Yes, sir.

"By the Court: Was that it, simply because he was a druggist? A. ...