Town of Kirkwood v. Autenreith

• Decision Date: 07 March 1882
• Citation: 11 Mo.App. 515
• Parties: TOWN OF KIRKWOOD, Appellant, v. GEORGE AUTENREITH, Respondent.
• Court: Missouri Court of Appeals

11 Mo.App. 515

TOWN OF KIRKWOOD, Appellant,

v.GEORGE AUTENREITH, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 7, 1882.

1. A prosecution, under a municipal ordinance against selling liquor without a license, is civil in form and not strictly criminal in character, and the corporation has the right of appeal.

2. It is no objection to the verdict that the jury is composed wholly of bystanders summoned after the regular panel is exhausted by challenges.

3. A prima facie case as to the owner's knowledge and consent is made out by proof that the saloon was fitted up as drinking shops are usually fitted, and that the bar-tender drew beer from a spigot in a keg of beer fitted in an ice-chest, and sold it over the counter, calling it sarsaparilla.

4. When a prima facie case is thus made, the burden is upon the owner to show that the bar-tender was acting without his knowledge or consent.

APPEAL from the St. Charles Circuit Court, EDWARDS, J.

Reversed and remanded.

W. S. BODLEY, for the appellant: The town of Kirkwood had a right of appeal in this cause.-- Kansas City v. Clark, 68 Mo. 588. The court erred in refusing the instruction asked by plaintiff, and in giving the instructions given on its own motion and one asked by defendant.-- Casey v. The State, 6 Mo. 646; Isbell v. The State, 13 Mo. 86; Hays v. The State, 13 Mo. 246; The State v. Bryant, 14 Mo. 340; Schmidt v. The State, 14 Mo. 137. The court erred in not granting a new trial as against the law and evidence, there being no conflict in the evidence.-- The State v. Loth, 50 Mo. 535; Doeming v. Saum, 56 Mo. 479; The State v. Dickhoff, 1 Mo. App. 83; Hearme v. Keath, 63 Mo. 84; Ackley v. Staehlin, 56 Mo, 558; Mohern v. Railroad, Co., 64 Mo. 267.

ZACH. J. MITCHELL, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding by the town of Kirkwood against defendant for violation of an ordinance of the town in selling intoxicating liquors without a license. Defendant was convicted before a justice of the peace, and, on appeal, he was granted a change of venue to St. Charles County, where, on trial anew, the jury found for defendant, and judgment was entered accordingly.

1. The supreme court decided, in City of Kansas v. Clark (68 Mo. 588), that a prosecution under a city ordinance against gaming, though that is an offence under the laws of the state, is civil in form, and not strictly criminal in character; and, that the municipal corporation has the right of appeal, in any proceeding of this nature for violation of its local laws. Upon the authority of that case it must be held that the town of Kirkwood had a right of appeal in this case.

2. When the jury were empanelled to try the case, there were no jurors on the panel except those summoned from bystanders, all the regular jurors having been challenged by one side or the other, for cause or peremptorily. Appellant claims that the trial court was bound to order a new panel, under section 2788 of the Revised Statutes. Under sections 2785 and 2800 the court had the right to direct the sheriff to summon other jurors from the bystanders, the regular panel being exhausted. We see no error in the action of the court in this respeet. The State v. Jones, 61 Mo. 232.

3. The testimony as to the commission of the offence was that of one witness only, a detective. It was clear and uncontradicted, and was to the effect that on the day named in the complaint the saloon of defendant had all the appearance of a bar-room, and the general furniture of such a place,--counter, bottles, and glasses; that there was an icechest there with a spigot running into it; that the witness asked for something to drink, whereupon the bar-keeper said they had sarsaparilla, went to the chest, drew beer from the spigot, gave it to witness, and he drank and paid for it. The testimony of this witness was taken by deposition, and seems to have been taken with a view to other charges of a similar nature, for violations of the ordinance on other days about the same time. It appeared from this deposition that Autenreith himself, on October 3rd, went through the same farce of offering sarsaparilla to witness when asked for liquor, and then selling him beer drawn from the same spigot. No objection was made to this testimony.

The formal proof as to the corporate powers of the town, the ordinance, the location of the saloon within the town limits, etc., was, in all respects, complete. The witness was uncontradicted, and he clearly proved the offence charged. The jury cannot have doubted that the bar-keeper sold the beer, and must have acquitted on the ground that they did not consider that it was sufficiently proved...