The State v. Stuckey
| Decision Date | 06 April 1903 |
| Citation | 73 S.W. 735,98 Mo.App. 664 |
| Parties | THE STATE OF MISSOURI, Respondent, v. JAMES STUCKEY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Platte Circuit Court.--Hon. A. D. Burnes, Judge.
AFFIRMED.
Judgment affirmed.
John W Coots for appellant.
(1) The court should have sustained defendant's objections to the panel of jurors, as they were not summoned in the manner provided by law, and the defendant was entitled to be tried by the regular panel. R. S. 1899, sec. 3769. (2) The court erred in refusing instruction No. 1, asked by the defendant. The "necessity" contemplated by section 2240, Revised Statutes 1899, is not an absolute necessity, but a relative necessity, and the defendant had the right to have the jury so informed by the court. Burnett v. Tel Co., 39 Mo.App. 599.
Sid Beery for respondent.
(1) Section 3769, R. S. 1899, cited by appellant, refers only to the drawing of the petit jury by the county court, and not to the trial of cases. It was perfectly proper and in accordance with the statutes for the court to direct the sheriff to summon a jury to try the case, after the regular panel had been exhausted, "by challenge or otherwise." R. S 1899, sec. 3789. (2) As to the moving of the engine being a work of necessity: Bennett v. Tel. Co., 39 Mo.App. 599, cited by appellant is hardly in point in this case. And in this case, if there was a moral fitness or propriety of the work and labor, moving and running his engine along a public highway, we are unable to see it. It is not contended that it was a work of charity. Hence, to be not guilty under the statute, it must have been, as claimed, a work of necessity. Where was the necessity?
--The defendant was indicted and convicted of working on Sunday. Among other instructions there was a demurrer to the evidence for the State. It was refused. There is no dispute of the substantial facts, and the only question is, whether the work was one of necessity, and thus brought within the exception of the statute. Defendant in the year 1901 was the owner of a threshing machine and operated it with a steam engine now commonly used for such purpose. He had engaged to thresh some wheat in his neighborhood, and to begin on Monday, July 1. He had taken the engine to Leavenworth, Kansas (about ten miles from his home in Missouri), for repairs and was notified on June 28 that it would be ready for him on Saturday, June 29. He went for it on the morning of that day and after getting it out of the repair shop only a short distance into the street, found it could not be propelled by its own power, and he was delayed with further repairs until near five o'clock in the afternoon. He then proceeded with it towards home. He got near half way by ten o'clock at night to a place in Missouri known as "Green's Lane," and there had to leave it in the public highway. The next morning (Sunday) he went after it and after getting up steam propelled it on to his home. He did this with the avowed knowledge that he might be prosecuted.
What labor should be called a work of necessity or charity has produced as much of conflict of decision as any other branch of the law, and Ringgold's Law of Sunday, 193, says: "It is safe to say that the vagueness of these words, and the impossibility of applying them with anything like uniformity to everyday life, would cause the courts to hold the whole law void for uncertainty, if it were anything else but a Sunday law." In City of St. Joseph v. Elliott, 47 Mo.App. 418, we said that whether Sunday laws are upheld on the theory of religious, political, or social duty, it was certain that religious promptings have been, in great part at least, the cause of their enactment in this country. Judge SCOTT stated that they were designed to compel a cessation from labor that there might not be a profanation or desecration of the day. State v. Ambs, 20 Mo. 214. Judge BURGESS said in State v. Granneman, 132 Mo. 326, 33 S.W. 784, that the policy of such laws was "to compel the observance of Sunday as a day of rest." But while those cases may show the object of Sunday laws and the cause back of their enactment, they throw no light on the puzzling words, "necessity," and "charity." "Necessity," is the word with which we are now concerned.
The only necessity which was brought forward by defendant in his defense was that he had a contract to thresh his neighbor's wheat on Monday, which was then standing in shock in the field. But that (if a necessity at all) was a necessity voluntarily brought about by himself and is not allowable as a defense. State v. Wellott, 54 Mo.App 310. The upshot of the contention is that it was more convenient to move the engine on Sunday in consequence of work to begin on Monday morning and "threshing preparations" having all been made by the owner of the wheat. But that will not do. For, "it is no sufficient excuse for work on the Lord's Day, that it is more convenient or profitable if then done than it would be to...
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