State v. Barnett, 111 Mo. App. 552

State v. Barnett

111 Mo. App. 552 | Mo. Ct. App. | 1905

GOODE, J.

This defendant was convicted of selling intoxicating liquor on the 18th day of January, 1904, without having a license as a dramshop keeper or any authority to sell the liquor. The defendant admitted selling a pint of whisky on the day charged in the information and that he had no license as a dramshop keeper. He asserts he was justified under a license to Wm. H. Barnett, issued by the county court of Pemiscot county September 19, 1903, to expire March 18, 1904. The defendant was employed as a bartender by Wm. H. Barnett when he made the illegal sale. To overcome the defense the State showed that at the November term of the circuit court of Pemiscot county, Wm. H. Barnett was convicted of violating section 3018 of the Revised Statutes of 1899 and his dramshop license revoked by the *555circuit court as part of the penalty for the offense. The offense with which he was charged in the circuit court was keeping a musical, instrument in his saloon and permitting it to he played. It was also shown by the State that the county court of Pemiscot county revoked Wm. H. Barnett’s license as a dramshop keeper by an order entered December 23, 1903. This order of the county court was on a charge that the said Wm. H. Barnett had not kept an orderly house. R. S. 1899, sec. 3012.

In regard to the judgment of the circuit court undertaking to forfeit the license of his employer, the defendant contends that the operation of the judgment had been suspended by an appeal to this court taken prior to January 18, 1904, when the defendant made the sale of liquor for which he was convicted, and, therefore, as far as the judgment of the circuit court is concerned, his employer’s license was in effect on that day and the defendant had the right to sell. As to order of the county court revoking his employer’s license, the defendant contends is was void for several reasons: First. Because it was made at a called term of the county court, though the proceeding to revoke the license was not embraced in the call. Second. Because the license was ordered revoked for the same reason it was ordered forfeited by the circuit court, namely; permitting a musical instrument to be played in the saloon; that, therefore, the county court should have upheld the plea of the pendency of the prior action to forfeit the license which had been instituted in the circuit court, when said plea was made by Wm. H. Barnett in the proceedings in the county court — in other words, that the pendency of the action in the circuit court to forfeit the license stood in the way of the county court’s taking jurisdiction of the proceeding to forfeit. Fourth. That the county court erroneously refused to grant Wm. H. Barnett an appeal from the order forfeiting his license.

County courts unquestionably have jurisdiction to revoke dramshop licenses in a proper case if the licensee *556has not kept an orderly house. R. S. 1899, sec. 3012. Therefore, the county court of Pemiscot county had jurisdiction of the suhject-matter of the proceeding to revoke the license of Wm. H. Barnett. This proceeding was instituted on a properly verified information charging the defendant with keeping a disorderly house. To the argument that the county court revoked the license for the same offence acted on by the circuit court, and that the action of the county court was in a proceeding of which it” had no jurisdiction, because a prior proceeding to forfeit on the same ground was pending in another court, our answer is that the proceedings in the two courts were entirely different. The cause pending in the circuit court was a criminal information charging Wm. IT. Barnett with a district offence, to-wit: keeping a muscal instrument in his saloon and permitting it to be played. The charge in the county court , was keeping a disorderly house. Those two charges were distinct and the county court had jurisdiction of one and the circuit court of the other. But if the county court sustained the charge of keeping a disorderly house on proof of the same facts for which Wm. H. Barnett was convicted of an offence in the circuit court, this does not render the forfeiture by the judgment of the former tribunal, on a finding by it that a disorderly house had been kept, a nullity in this independent prosecution. Neither does the evidence received by the county court in proof of the charge that a disorderly house was kept, demonstrate that said court was without jurisdiction. Its jurisdiction depended on the filing of a proper charge against the dramshop keeper; not on the evidence adduced to support the charge. The evidence may have been insufficient to support it and the judgment revoking the license may have been erroneous; but it is good against collateral attack.

The proceeding to forfeit the license was not embraced within the call for the special term and could not properly have been proceeded with at that term if objec*557tion had been interposed or Wm. H. Barnett had not submitted to and acquiesced in the hearing of the matter at the called term. But the record of the county court’s action as preserved in the record of the present case, shows that said Barnett appeared at the called term and does not show that he objected to action on his case for the reason that it was not within the call. What he did, was to interpose the plea of a prior suit pending in. the circuit court and prior adjudication there and move the dismissal of the charge pending in the county court. The motion and plea were overruled and the proceeding to revoke the license was heard, as far as appears, with his concurrence, that is, without objection that it could not be heard at the special term.

Manifestly the refusal of the county court to grant an appeal from the order revoking Wm. H. Barnett’s license cuts no figure in this case. It does not render the judgment of forfeiture void and affords the present defendant no ground to assert that the license was in force on January 18th when he sold liquor for his employer. All the foregoing matters are found, on scrutiny, to be attempts in this case to have the action of the county court in an entirely distinct cause against another person, declared a nullity, although that court had entire jurisdiction of the proceeding in which it acted.

It is said that Wm. H. Barnett’s appeal from the conviction in the circuit court kept his license in force pending the appeal and justified this defendant in selling liquor during the interval. We are by no means ready to concede that, if no other step against the license had been taken, it would have remained in force until Wm. H. Barnett’s appeal was decided. There is much authority for saying that, in as far as a judgment is self-executing, it remains operative notwithstanding an appeal with bond. Elliott App. Proced., secs. 391, 393, 394; Walls v. Palmer, 64 Ind. 493; Graves v. Maguire, 6 Paige Ch. 379; Padgett v. State, 93 Ind. 396; Burton v. *558Burton, 28 Ind. 312; Carver v. Carver, 115 Ind. 539. And it is generally held that a judgment or decree forbidding the doing of a specific act remains operative notwithstanding the appeal. Thus, where an attorney was disbarred and suspended from practice, it was held that granting a supersedeas did not entitle him to practice pending the decision of the appeal. Walls v. Palmer, 64 Ind. 493; State ex rel. v. Dillon, 96 Mo. 56, 8 S. W. 781; State v. Chase, 41 Ind. 356; Central Union, etc., Co. v. State, 110 Ind. 203; Hawkins v. State, 126 Ind. 294; Heinlen v. Cross, 63 Calif. 44; Railroad v. Gilbert, etc., Co., 71 N. Y. 430; Graves v. Maguire, 6 Paige Ch. 397; Robertson v. Davis, 14 Minn. 554. But the decision of that point may be waived in the present case, for when the defendant sold whiskey on January 18th there stood of record, not only the forfeiture of his employer’s license by the judgment of the circuit court, but the revocation of the license by the county court; and certainly the appeal of the case in the circuit court did not operate as a supersedeas of the county court’s judgment: which, therefore, must be treated in this collateral cause, as in force.

The defendant showed no authority to sell liquor on the day he made the sale in question and the judgment convicting him of an illegal sale is affirmed.

All concur.