The State v. Talken

• Decision Date: 24 January 1927
• Docket Number: 27530
• Citation: 292 S.W. 32,316 Mo. 596
• Parties: The State v. Henry Talken, Appellant
• Court: Missouri Supreme Court

292 S.W. 32

316 Mo. 596

The State v. Henry Talken, Appellant

No. 27530

Supreme Court of Missouri

January 24, 1927

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Reversed and remanded.

David W. Peters for appellant.

(1) The defendant rests his entire appeal upon the unconstitutionality and invalidity of the law found at pages 236 et seq., Laws 1923. (a) "The adjudicated cases, as well as the elementary writers, all concur that it was to prevent the vicious practice of conjoining, in the same bill incongruous matters, and subjects having no legitimate connection or relation to each other, and in no way germane to the subject expressed in its title; that its object was to prevent surprise or fraud upon members of the Legislature rather than embarrass legislation by making laws unnecessarily restrictive. Cooley on Const. Limitation, 174; St. Louis v. Tiefel, 42 Mo. 590. Here we have in a nutshell the mischief to be remedied by the constitutional provisions under consideration." State v. Hedrick, 294 Mo. 21, 241 S.W. 409. (b) The title to this act violates Sec. 28, Art. 2, Mo. Constitution. (c) Section 23 of Article II of the Constitution provides "that no person shall be compelled to testify against himself in a criminal case." Section 23 of the Act of 1923 provides that no person shall be excused from testifying or producing evidence against himself in connection with any violation of the act. The title is silent as to this particular provision.

North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The information is sufficient. Sec. 21, p. 242, Laws 1923; State v. Wright, 280 S.W. 703; State v. Brown, 304 Mo. 78; State v. Moore, 279 S.W. 133. (2) The constitutional sufficiency of the title of the Intoxicating Liquor Law of 1923, Laws 1923, p. 236, and of Section 21 thereof, is not an open question. State v. Tallo, 308 Mo. 585. Nor is the act invalid for vagueness or conflict of language. State v. Griffith, 279 S.W. 135. Section 23, of the Act of 1923, which suspends the privilege of a witness to refuse to testify in proceedings arising under the act, on the ground of self-incrimination, is not in violation of Section 23, of Article 2, of the Constitution of Missouri, since it is provided that the person so testifying shall be immune from penalties and forfeitures in relation to the matters and things concerning which he so testifies. State ex rel. v. Standard Oil Co., 218 Mo. 375; Hale v. Henkel, 201 U.S. 69; People v. Cahill, 193 N.Y. 232, 20 L. R. A. (N. S.) 1084. Further, there is no intimation in the record that the defendant in this case was compelled to furnish any one of the links in the chain of evidence upon which his conviction rests and it is familiar law that one may not raise a constitutional question where his personal constitutional rights have not been invaded. Stouffer v. Crawford, 248 S.W. 585; State v. Williams, 266 S.W. 486.

Davis, C. Higbee, C., concurs.

OPINION

DAVIS

On the 12th day of June, 1925, there was filed in the Circuit Court of Cole County a verified amended information comprising two counts. The first count charged defendant with the unlawful possession of five gallons of moonshine whiskey, and the second count with unlawfully and feloniously transporting five gallons of moonshine whiskey. Subsequently a motion to quash the information was filed, as follows:

"Comes now the defendant, Henry Talken, and moves the court to quash the information heretofore filed in the above entitled cause, and for grounds of said motion says:

"1. That said information is insufficient and does not charge the defendant with the commission of any crime defined by the law of this State.

"2. Because the information is founded upon an act of the 52nd General Assembly of Missouri, found at page 236 of the Laws of Missouri of 1923, which said act is in conflict with Section 28 of Article IV of the Constitution of Missouri, in that the title of said act does not sufficiently set out all the matters embraced therein.

"3. Because said Act of 1923 is in conflict with Sections 22, 23 and 30 of Article 2 of the Constitution of Missouri, in that it requires the defendant to testify against himself.

'4. Because said Act of 1923 is an incongruous, heterogeneous mass of conflicting clauses, not set out in the title of said act and deals with more than one subject, in conflict with said Section 28 of Article IV of the Constitution of Missouri."

Thereafter defendant waived arraignment and entered a plea of not guilty. The prosecuting attorney thereupon dismissed the first count of the information, with the consent of the court, and by agreement of plaintiff and defendant the cause was tried before the court, sitting as a jury, without the intervention of a jury, and the court returned the following verdict:

"The court, sitting as a jury, finds the defendant guilty as charged in the 2nd count of the information and assesses his punishment at three months in the county jail."

Within four days defendant filed his motion for a new trial, setting forth as grounds therefor the assignments in words and figures found in his motion to quash. Subsequently allocution was had and judgment and sentence was entered in accordance with the terms of the verdict of the court sitting as a jury, from which defendant duly appealed.

We need not note the evidence further than to state that the cause was tried upon the evidence of the State only, defendant refusing to testify or offer any, and that the proof adduced was ample to sustain a conviction of the charge, if believed.

I. Defendant attacks the information in his motion to quash because it is insufficient and fails to charge defendant with the commission of any crime defined by the laws of this State. Deleting the formal parts, the second count charges that defendant on May 7, 1925, at and in said County of Cole and State of Missouri, did unlawfully and feloniously transport 5 (five) gallons, more or less, of moonshine whiskey, against the peace and dignity of the State. Testing the information in that regard it meets not only the rule that it must conform to the statute on which it is based, but also the rule that it fully informs defendant of the crime upon which he is to stand trial. If it is charged that the omission of the averment that moonshine whiskey is intoxicating liquor constitutes error, then we advert to Section 21, page 242, Laws 1923, as a statutory finding that moonshine whiskey is intoxicating, and to the rule that courts take judicial notice that whiskey is both a distilled spirit and intoxicating. [33 C. J. 496; Albert v. United States, 281 F. 511; State v. Williamson, 21 Mo. 496.]

II. Defendant states that he rests his entire appeal upon the unconstitutionality and invalidity of the intoxicating liquor act, found at pages 236 et seq. of the Laws of Missouri, 1923, avowing as reasons therefor that it fails to comply with the provisions of Section 28, Article IV, of the Constitution of Missouri, embracing more than one subject within the meaning of the section and containing an incongruous mass of conflicting clauses not germane to each other, some of which are not mentioned in the title of the section.

However incongruous the title to said act may appear, the constitutionality of the 1923 intoxicating liquor act is no longer open to attack, for we held in State v. Tallo, 308 Mo. 584, that the title of said act conforms to Section 28, Article IV, of our Constitution; and in State v. Griffith, 279 S.W. 135, per Walker, J., that regardless of the seeming incongruity and the difficulty of their interpretation, the intoxicating liquor statutes, not being inhibited by any organic law, are clearly within the purview of legislative power and not the subject of tenable objection.

III. As a corollary to his attack upon the constitutionality of the act, defendant avers that the silence of the title as to compelling self-incrimination as shown by Section 23, is an illuminating factor in determining the act unconstitutional. We do not so construe it. The authority for the enactment of Section 23, which compels self-incrimination, but as certainly...