136 Mo. App. 608 | Mo. Ct. App. | 1909
The defendant was indicted, tried and convicted in the Gentry Circuit Court for the illegal sale of intoxicating liquor in violation of the Local Option Law. From the judgment of conviction, he appealed.
The State introduced in evidence a certified copy of the record of the county court of date of August 20,1906, showing the declaration of the result of an election held on the 17th day of August, 1906, in the county, to determine whether or not intoxicating liquors should he sold in the county ouside of the city of Stanberry; and proved a sale of liquor by defendant in November following and rested its case. Whereupon defendant asked a peremptory instruction to the jury to find defendant not guilty, which the court refused.
For the purpose of attacking the validity of the proceedings, certain records of the county court were introduced by the defendant. The record shows that the county court met on Monday, May 7,1908, in regular session, and was in session on May 9th, June 4th, June 6th, July 2nd, and July 18th. At all these different meetings, except the first and last, the record recites that the “Court met pursuant to adjournment, all the members being present.” There was no order of adjournment entered upon the court’s minutes at the dose of the day of 7th of May, the first day of its regular session. And no such entries were made when the court adjourned on May 9th, June 4th and July 2nd, but a final entry of adjournment was made on the 18th of July. It Avas on the last-named date that the order for the election was made.
At the regular January term of the court for 1907, the court made the following entry of record: “Whereas, it appearing to the court by an inspection of its records and the judges’ notes that this court has inadvertently failed to enter upon its records its order of adjournment made by this court on the 7th day of May, 1906, whereby
The validity of the election turns upon the question whether the court that made the order for such election was properly convened ion Jnly 18th, when the order was made for holding it.
It may be conceded that, “A court may, in the exercise of its common law power, when the state of the records kept by the court or the clerk show that a suitor was entitled to a particular judgment, but that the judgment was not entered at the term when it should or might have been entered, at a subsequent term cause the proper judgment to be entered to relate back to the term when it should have been entered.” [Dawson v. Waldheim, 89 Mo. App. 245.]
It is held that “It is not necessary that the records of the court show, in order to enable it to direct a judgment nunc pro tunc, in express terms that such judgment had been rendered; it is sufficient if the facts shown by the records are such as to reasonably carry conviction, that the judgment was in fact rendered.” [Witten v. Robison, 31 Mo. App. 525.] “A nunc pro tunc entry must be treated as erroneous and void unless it contains the identical judgment of the court at a former term and conforms to the record memorandum of the judges and the clerk’s minutes or other papers in the case existing or made at the time at which the case was decided.” [State ex rel. v. Baldwin, 109 Mo. App. 573;
But we believe, under the facts in this case, the rule is not applicable because the subject-matter is different. It is evident, taking into consideration the whole record, that’ all the different sessions of the court alluded to were adjourned terms of the regular May term for 1906. The recitation in the record at the beginning of each session that the court met pursuant to adjournment of the one last preceding and the final order of adjournment made on the 18th of July seem to us ought to be construed as showing a continued session of the court from its first regular meeting until the order was made for its final adjournment. Such being the case, it was competent for the court to enter the said nunc pro tuno orders. And, as the court had not finally adjourned when the entries referred to in the first instance were made, that the court met pursuant to adjournment, it had ample evidence of record for the nunc pro tunc orders.
And this view of the question is fortified when it is considered that the presumption of law is that a court of record, while sitting as such and performing its functions, is lawfully assembled. And the evidence offered here does not .tend to rebut the presumption, that the court, consisting of the regular judges constituting that body in connection with the acknowledged county clerk, was lawfully assembled, but, on the contrary, supports it. The fact that the several judges met at these adjourned sessions is conclusive evidence that the regular term had not expired and the presumption is that they would not have assembled as a court unless there had been an adjourned session or upon statutory notice. Every presumption is indulged in favor of the legality of the sittings of the court. To look at the matter as we would any other, can there be any doubt of the fact
It is claimed that there was no publication of the result of the election as the law requires; therefore, the Local Option Statute was not in force in the county of Gentry. Section 3031, Revised Statutes 1899, provides that “if a majority of the votes cast at such election be against the sale of intoxicating liquors, the county court or municipal body ordering such election shall publish the result of such election once a week for four consecutive weeks in some newspaper in which the notice of election was published; and the provisions of this article shall take effect and be in force from and after the date of the last insertion iof the publication last above referred to.” The county court, after ascertaining and declaring the result of the election, ordered the same to be spread upon the records and then caused the following entry to be made, “And it is further ordered that the result of said election be published for four consecutive weeks in the Albany Capitol, the same newspaper in which notice of said election was published.” There was no proof that the publication had or had not been made.
The defendant, in support of the view that proof of such publication should be made, relies upon the case, among others, of State v. Searcy, 39 Mo. App. 393. The court did not hold that it was necessary for the State to make out a prima-facie case to show that the result of election had been published. The syllabi are misleading in that respect. On the contrary, the proper inference to be drawn from the language of the court is that an order for such publication was sufficient. In State v. Hutton, 39 Mo. App. 410, the publication had been made, and it was a question in the case whether it was necessary for the county court to have found that it had been and entered its finding in the records. It was held that it was not necessary. In State v. Dugan, 110 Mo. 138, the court merely held that notice given of the result of
This court has recently passed on a similar question, where it is held that “In a prosecution for the sale of liquor in violation of the Local Option Law, the State does not have to show as a part of its case that a notice of the election was given, though without such notice the election would be void.” [State v. Foreman, 121 Mo. App. 502.] And in a more recent case, where the precise question was raised, we hold that “The record of the county court relating to the adoption of the Local Option Law need not show a return of the publication of; the result where it shows the publication was ordered, and the burden to show a failure of such publication is upon the defendant.” [State v. Oliphant, 128 Mo. App. 252.]
Lastly, it is contended that the State failed to prove that the offense was committed in Gentry county outside of the limits of the city of Stanberry. A witness for the State testified that the defendant sold him intoxicating liquor, but did not state in what place or in what county the sale was made. Another witness testified that defendant’s place of business was in Whitton and that Whitton was about twelve miles from Stan-berry. This was all the evidence upon the question as to where defendant made the sale.
There was á failure to prove the venue of the offense. It nowhere appears that the .sale alleged to have been made was in the county of Gentry. Proof that defendant’s place of business was in Whitton, twelve miles distant from Stanberry, was sufficient of course to show that it was not made within the corporate limits of that city. The court takes judicial notice of the boundaries of Gentry county, but we cannot take judicial notice that Whitton is in that county,- and for aught we may know, except by inquiry, it may be in Nodaway county as the boundary line between that county and Gentry county is not distant from Stanberry twelve miles. It
