State v. Brown, 130 Mo. App. 214

130 Mo. App. 214 | Mo. Ct. App. | 1908

BLAND, P. J.

The appeal is from a conviction of defendant for an illegal sale of intoxicating liquor. The information was filed before a justice of the peace in McDonald county, and charged that defendant, on September 8, 1905, sold intoxicating liquor, in McDonald county, in violation of the local option law, which the information alleged had been adopted in said county and was in force therein. In dne course the canse was appealed to the circuit court, where on a trial de novo defendant was found guilty and his punishment assessed at a fine of $300. Various errors are assigned as having intervened on the trial.

1. First, it is contended that the notice of the local option election was insufficient under the statute and for this reason the election was void. The county court ordered the election to be held on April 9, 1904, and ordered that notice of the election he published in the Pineville Herald, a weekly newspaper, printed and published in McDonald county. The fact is uncontroverted, that the notice appeared in the designated paper, the Pineville Herald, for four consecutive weeks, namely, March 11th, 18th, 24th and April 1, 1904. Excluding March eleventh, the date of the first insertion, and including the day of the election (April ninth) twenty-nine days, or four weeks and one day intervened between the publication of the notice and the day of the election, and less than ten days between the date of the last insertion of the notice and the day of the election. The statute (R. S. 1899, sec. 3029) provides that the “notice shall be published in such newspaper (designated by the county court) for four consecutive weeks, and that the last insertion shall be within ten days next before such election.” This provision has been repeatedly construed to mean that there shall' be twenty-eight days’ notice of the election and that a notice which allows a less number of days is insufficient. [In re Wooldridge, 30 Mo. App. 612; State ex rel. v. Tucker, 32 Mo. App. 620; Leonard v. Saline Co. Court, 32 Mo. App. 633; State v. Kaufman, 45 Mo. App. 656; State v. Kampman, 75 Mo. App. 188.] As stated, twenty-nine days intervened between the first publication of the notice and the day of the election, and we think the notice was published in strict compliance with the statute. But we are cited by defendant to the case of State v. Dobbins, 116 Mo. App. 29, wherein tbe Kansas City Court of Appeals, in an opinion written by Judge Ellison, held, in effect, that if tbe notice is published in a weekly paper there should be five insertions, and that a publication in four consecutive weekly issues of the paper would not meet the requirements of the statute. The facts in judgment in that case were, the notice of the election was ordered to be published in two weekly papers; in one the notice was inserted August fourth, eleventh, eighteenth and twenty-fifth and September first; in the other it was inserted August third, tenth, seventeenth and thirty-first. The last insertion in each was within ten days of the election. The fourth insertion was more than ten days before the election, hence it was essential to the validity of the election that a fifth insertion be made. But we are unable to concur in the reasoning of our learned Brother Ellison, by which he reaches the conclusion that five insertions in a weekly newspaper are necessary to give four weeks’ or twenty-eight- days’ notice; nor do we think his reasoning is supported by the case cited and relied on by him, namely, State ex rel. v. Tucker, supra. The time intervening between the date of the first insertion of the notice in that case and the election was but twenty-four days. On this state of facts Judge Ellison, at page 628, says: “Does the law require a notice of four weeks, of seven days each, or does it only require a sufficient period of time to cover four consecutive weekly insertions, though such time be less than twenty-eight days? In other words must there be four weeks’ notice of the election or a less time. Our answer is that there must be four weeks’ notice — twenty-eight days’ notice — of the election, the computation to be made by excluding the first day of the notice and including the day of the election.

In Hayward et al. v. Russell et al., 44 Mo. 1. c. 254, Judge Buss, in commenting on the statute in respect to the publication of notice of an attachment suit, said: “The statute requires that notice should be published for four weeks, and that the last insertion should be at least four weeks before the commencement of the term. If the first publication is for one week, surely the other three are for .one week each, and it is only necessary that ‘the last insertion’ — not the last week — should be four weeks before the term. The notice objected to was published in a weekly paper, in four consecutive numbers, which makes four weeks.” This ruling Avas approved by Barclay, J., in Cruzen v. Stephens, 123 Mo. 337, 27 S. W. 557, where it was held that a publication of a notice in a tax suit on March seventh, fourteenth, twenty-first and twenty-eighth was four weeks publication. In the case of Young v. Downey, 150 Mo. 317, 51 S. W. 751, is is said these cases should no longer be followed. The publication in the Downey case was a notice by an administrator of his intention to apply to the probate court for an order to sell lands belonging to his intestate. This notice was published on the eighth, fifteenth, twenty-second and twenty-ninth of September, Avhile the first day of the court at which the order was made was October second.' The statute required that the notice should be published for four consecutive weeks before the first day of the term, and it was held that as but twenty-six days intervened between the first insertion of the notice and the first day of the term, that four weeks” or twenty-eight days’ notice was not given. But it was not held that if tAventy-eight days had intervened between the first insertion and the first day of the term, the notice would have been insufficient, or that it was necessary to have five insertions to give twenty-eight days’ notice.

In the matter of Wooldridge, supra, it was held by this court, Rombáuer writing the opinion, that the statute (3029, supra) Avas satisfied if tAventy-eight days intervened between, the first of consecutive publications and the day of the election.

In Ratliff v. Magee, 165 Mo. 461, 65 S. W. 713, it is said: “The statute required that the notice for the final settlement of an estate should be ‘published for four weeks’ prior to the term. Held, that this statute required a notice to be published for four weeks or twenty-eight days prior to the .beginning of the term, but did not require that four weeks should intervene between the date of the last publication of the newspaper and the first day of the term; and, hence, a notice published in a newspaper on March 24, March 31, April 7, and April 14, prior to the beginning of the term on May 8, met the requirements of the statute and was sufficient.”

The Dobbins case seems to assume that the notice ceases to be published the day after the paper leaves the press; that it does not continue to be published from one issue of the paper to the next succeeding one. If this were true, a notice published in a weekly newspaper four times would only give four days’ notice and, to-comply with the requirements of the statute, it would be necessary to publish the notice for twenty-eight days in a daily paper, or for twenty-eight weeks in a weekly newspaper. The notice, as such, when published in a weekly does not cease to impart notice the day after the paper leaves the press, but continues, within the meaning of the statute, to be published until the issuance of the next current number of the paper, or for seven days. The last insertion should be held to continue for the same length of time to impart notice of the election.

2. The point is made that because the notice was signed by the clerk of the county court it was void. The statute provides that on a proper petition, the county court shall order an election to be held in the county, etc., and the result of the election shall be entered upon the records of the court. A certified copy of the order of the court ordering the election would be a proper notice, and it would be the clerk’s duty to certify the order and deliver it to the newspaper designated to publish the same. The notice itself is not in the record. Following the rule that right action is to be presumed in favor of officers in the discharge of their official duties, we will assume, in the absence of evidence to the contrary, that the notice was properly authenticated and rule this point against defendant.

3. To show that local option had been adopted, the prosecuting attorney introduced the records of the county court, which show that a proper order for the election was made and that the result was made a matter of record. The court heard the evidence in respect to the adoption of the law in the absence of the jury, and at the close of the case instructed the jury that the law had been adopted. Defendant contends that this was error’t that it should have been left to the jury to determine whether or not local option had been adopted. This is not the law and never has been. The law is thus stated by Judge Thompson, in State v. Searcy, 39 Mo. App. 1. c. 406: “The question, whether a law which is to be a rule of conduct exists or does not exist, is a ' judicial question, and cannot be submitted to the ignorance or caprice of a jury. Thus, it has been, held that the question, whether what purports to be an act of the Legislature of the State was duly passed with the concurrence of the requisite majority of the members of both houses, as is required by the Constitution of the State, so as to become a valid law, is a question for the court, and not for the jury.”

4. It is finally contended that the State’s evidence fails to show defendant sold the liquor. Defendant is a blacksmith, and the evidence shows that Moffett and two other persons went to his shop where he was at work. When they arrived at his shop defendant was -welding a piece of iron. Moffett said, to him, “These boys want some booze.” Defendant replied, “Yon will have to wait and blow for me until I make this weld.” Defendant made the weld, washed his hands, and he and Moffett went out of the shop and the purchaser of the whiskey went into a room adjoining the shop and under the same roof, and there received a bottle of whiskey from the hands of Moffett, to whom he handed a dollar. Moffett went into the shop, to which defendant had returned, and came back into the room with fifty cents in change, which he handed to the purchaser of the whiskey. The reasonable and logical deduction to be drawn from this evidence is that defendant furnished the whiskey and received the pay therefor.

We think the case was properly tried and affirm the judgment.

All concur.