State v. Foreman

| Mo. Ct. App. | Nov 5, 1906

ELLISON, J.

The defendant was indicted, tried and convicted for selling liquors in Harrison county contrary to the local option statute which is alleged to have been adopted in that county.

It is urged by the defense that the evidence shows that the local option law was not adopted. The State introduced portions of the record of the county court which showed a canvass of the votes cast in Harrison county at an election held submitting the local option law, and that a majority were cast in favor of adopting such law. The State further showed by such record that the county court ordered that notice of the result of the election, so ascertained, to be duly published in the “Bethany Republican.” It was then shown that this notice was properly published. But the defense introduced the whole of the county court record whereby the following appeared: “Now comes C. W. Crossan and others and presents to the court a petition signed by nine hundred and fifteen qualified voters of Harrison county, Missouri, asking the court to order an election in Harrison county. . . . And it appearing to the court that more than one-tenth of the qualified voters of said narrison county have signed said petition . . .,” etc.

The law requires that the petition shall be signed “by one-tenth of the .qualified voters of any county. . . . who are qualified to vote for members of the Legislature . . .” It further provides that the county court shall ascertain who are qualified voters “by the poll books of the last previous general election.”

It Avill be noticed that the difference between the foregoing record of the county court and the law is that the latter requires that the petitioners shall not only be qualified voters but that they shall be qualified to vote for members of the Legislature. And that the law requires the competency of the petitioners, as such voters, is to be ascertained from the poll books of the last general election; about which the record is silent.

In support of the prosecution, we are cited to the case of State v. Searcy, 39 Mo. App. 393" court="Mo. Ct. App." date_filed="1890-02-18" href="https://app.midpage.ai/document/state-v-searcy-8259954?utm_source=webapp" opinion_id="8259954">39 Mo. App. 393, AAdierein is stated by the St. Louis Court of Appeals what would be deemed sufficient proof on the part of the State in prosecuting under this law. But defendant insists that that case is not applicable since it here appears, affirmatively, by the record of the county court, that the laAV was not complied with; and he cites in his support a late case by the St. Louis Court of Appeals, State ex rel. v. Bird, 108 Mo. App. 163" court="Mo. Ct. App." date_filed="1904-11-15" href="https://app.midpage.ai/document/state-ex-rel-bell-v-bird-6621303?utm_source=webapp" opinion_id="6621303">108 Mo. App. 163, as well as State ex rel. v. Baldwin, 109 Mo. App. 573" court="Mo. Ct. App." date_filed="1904-11-07" href="https://app.midpage.ai/document/state-ex-rel-davis-v-j-h-baldwin-6621460?utm_source=webapp" opinion_id="6621460">109 Mo. App. 573, and State ex rel. v. Wilson, 99 Mo. App. 680.

If we should concede that' the case of State v. Searcy does not apply to the case made by the county court record here involved; or, if it does apply, that it is overruled by State ex rel. v. Bird, yet we must hold the defendant’s point as unsubstantial for the following reason: The law requires the petitioners to be “qualified voters” who are “qualified to vote for members of the Legislature.” A qualified voter is described and ascertained both by the constitution and section 6994, Revised Statutes 1899, and as thus qualified, he “shall be entitled to vote at all elections by the people.” We know of no difference in the qualification of a voter depending on the office or thing for which he votes. A qualified voter can vote for member of the Legislature and so he may vote at any other election by the people. There is no difference in the. qualification of voters at any election by the people whoever the officer voted for may be. So, therefore, when the court record recited that the voters were qualified voters, it necessarily recited that they were qualified to vote for. members of the Legislature. If our law recognized a difference in the qualification of voters for different officers, the question before us would not be what it now is. ■

We do not regard that it was necessary for the record of the county court to show how it ascertained the qualifications of the voters, so long as it does not show they pursued an illegal method.

Nor do we regard that it was necessary for the State to show affirmatively, as to part of its case, that notice of holding the election was given. If the defense should show that no notice was given the election would, of course be void. But, though it is so claimed, such showing was not made.

We do not regard the point made against the indictment as sound. The indictment was returned in October, 1903, and it alleges that the local option law was adopted the 10th of January, 1900, “and has been and now is in force as the law of the State,” etc., and then alleges a sale of liquor on the 15th day of August, 1903. Under the statute, after the adoption of the law in January, 1900, it could not be changed or suspended for a period of four years. It therefore does clearly appear that the misdemeanor was committed while the law was in force at the time and place of committing the act.

We regard the introduction of the court record of-the district court of Clarke county in the State of -Iowa as improper. It appears that Oliphant was an important witness for the defense and the State sought to discredit him and thereby in effect to deprive defendant of the benefit of his testimony by showing a court record of his conviction for selling liquors illegally in the State of Iowa. In attempting to authenticate that record under the provisions of the act of Congress declaring that full faith and credit shall Tie given in one State to the judicial record proceedings of another State, the certificate was made by the deputy clerk of the court in the name of the clerk, thus, “F. M. Stacy, Clerk of the District Court. By W. E. Morrow, deputy.” The act of Congress requires that the clerk shall make the certificate. This means that the clerk himself shall do so, and not by or through his deputy. [Murdock v. Hillyer, 45 Mo. App. 287" court="Mo. Ct. App." date_filed="1891-05-11" href="https://app.midpage.ai/document/murdock-v-hillyer-6616693?utm_source=webapp" opinion_id="6616693">45 Mo. App. 287; Morris v. Patchin, 24 N.Y. 394" court="NY" date_filed="1862-03-05" href="https://app.midpage.ai/document/morris-v--patchin-3596705?utm_source=webapp" opinion_id="3596705">24 N. Y. 394; Flint v. Noyes, 27 Kansas 351; Railway Co. v. Cutter, 19 Kansas 83.] In the latter case the certificate was made by the deputy in the name of the clerk, but in an opinion by Judge Brewer it was held to be insufficient. It is true that our statute, and if it be assumed that the statute of Iowa also, makes the acts of the deputy in the name of his principal the acts of his principal. Yet the validity of the certificate of a foreign record does not depend upon State laws. The State does not give authority to the clerk. The clerk derives his authority from the law of Congress and not the law of the State.

The record not being admissible for any purpose, the objection made by defendant’s counsel was comprehensive and broad enough to preserve the point for review in this court. The judgment is reversed and the cause is remanded.

All concur.