207 Mo. 26 | Mo. | 1907
— -On the sixth day of July, 1906, the prosecuting attorney of Stoddard county filed an information, duly verified, in the office of the circuit clerk of said county, against the defendant, wherein he informed the court that on the first day of December, 1903, the Act of the Legislature, commonly known as the Local Option Law, to-wit, article 3 of chapter 22 of the Revised Statutes of 1899, had been duly adopted and was in force as the law of the State within and for the county of Stoddard and State of Missouri, and that there was no city within said county having a population of 2,500 inhabitants or more, and that on or about the twenty-fifth day of June, 1906, the defendant did then and there at said Stoddard county, unlawfully give away intoxicating liquor, to-wit, one drink of whiskey, and that the said John Fulks did not then and there have any license of any kind authorizing him to give away the same, and that said gift of said whiskey was then and there made without any lawful authority whatever to give away the same, contrary to the provisions of said Local Option Law, against the peace and dignity of the State. The defendant was arrested and duly arraigned and pleaded not guilty, and at the December term, 1906, of said court, was put upon trial and convicted and fined three hundred dollars. From that conviction he appeals to- this court.
Tbe evidence on the part of the State to sustain the information tended to prove that the defendant John Fulks was engaged in the real estate business in the city of Dexter, a city containing less than.' twenty-five hundred inhabitants, in Stoddard county. He was in the habit of buying intoxicating liquors at places outside of said county from persons legally authorized to sell it, and of keeping it in his office and at his resi
Under this state of facts, the circuit court instrueted the jury that if they believed and found from the evidence in the case beyond a reasonable doubt that the defendant in the county of Stoddard and State of Missouri, at any time within one year next before the twenty-fifth of June, 1906, gave away intoxicating liquor, they would find the defendant guilty as charged in the information, and assess his punishment at a fine of not less than three hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not less than six months, or by both said fine and imprisonment. The court also instructed the jury that on or since the first day of December, 1903, article 3 of chapter 22 of the Revised Statutes of 1899, generally known as the Local Option Law, had been and was in force in Stoddard county, Missouri, as was mutually agreed by both the prosecuting attorney and the defendant. The court also defined intoxicating liquor as meaning fermented, vinous and spirituous liquors, or any composition of which fermented, vinous or spirituous liquor forms a part. The court also gave a liberal instr action defining reasonable doubt,
Within four days after the rendition .of the verdict finding him guilty the defendant moved the court for a new trial because the verdict was- against the evidence and against the law, and because the court erred in refusing instructions numbered 2, 3 and 4 prayed by the defendant. Which instructions were as follows:
“2. The court instructs the jury that, if they believe and find from the evidence in the cause, that the defendant, John Fulks, was mot, on the date mentioned in the information, nor for one year prior thereto, had been engaged in the selling of intoxicating liquor in the county of Stoddard; but that he had been, at the times mentioned, engaged in a business or occupation not connected, directly or indirectly, in the sale or disposal of intoxicating liquors for gain, that is to say, solely in the business of buying and selling real estate, and that defendant did, on ome or more occasions, during the time above mentioned have and keep at his place of business, intoxicating liquor for his own individual use, and did give away to one or more of the witnesses who have testified in -this cause, drinks out of his individual supply, solely as an act of courtesy or friendship, and not with a purpose of deriving any pecuniary profit or gain by so doing, or to further any commercial or business enterprise, or to induce any one to trade or transact business with him, you will find the defendant not guilty.
“3. The court instructs the jury that under the law and facts in this case they will acquit the defendant for the reason that the law under which this prosecution is had is unconstitutional and void because it contravenes the provisions of section 28 of article 4, section 11 of article 2, section 32 of article 2, of the Constitution of the State of Missouri, article 4, article 9, of the Amendments to the Constitution of the United*32 States, and section 2 of article 4 of the Constitution of the United States.
“4. Now comes defendant and moves the court to discharge him of the charge and information now pending against him, for the reason that the law, to-wit, chapter 22 of article 3 of the Revised Statutes of 1899, of the State of Missouri, upon which this charge and information is founded, is unconstitutional for the following reasons, namely: It contravenes the provisions of section 28 of article 4; section 11 of article 2; section 32 of article 2, of the Constitution of the State of Missouri; article 4, article 9, of the Amendments of the Constitution of the United States, and section 2 of article 4, of the Constitution of the United States.”
The defendant also filed a motion in arrest of judgment upon the grounds that,
“The information does not state facts sufficient to constitute any offense under any law of the State of Missouri.
“Because chapter 22 of article 3 of the Revised Statutes of 1899 of the State of Missouri, under which defendant was tried and convicted, is unconstitutional and void, in this: It is in contravention of section 28 of article 4 of the Constitution of the State of Missouri. It is in contravention of article 8 of the Amendments to the Constitution of the United States. It is in contravention of article 14 of the Amendments to the Constitution of the United States. It is in contravention of section 2 of article 4 of the Constitution of the United States. It is in contravention of article 4 of the Amendments to the Constitution of the United States.
“Because the verdict of the jury is not responsive to the averments and charge contained in the information.”
Which motions were.overruled and the defendant duly excepted.
In the numerous cases in which the constitutionality of this act has been assailed, the proposition is now advanced, for the first time, that if the words “give away” in section 3032, Revised Statutes 1899, mean literally a gift of intoxicants, under any and all conditions wherever the Local Option Law is in force, then the act of 1887, now article 3 of chapter 22, is in conflict with section 28 of article 4 of the Constitution of this State. Section 28 of article 4 of the Constitution of this State provides: “No bill shall contain more than one subject, which shall be clearly expressed in its title.” Now the title to the Local Option Act, so called at the time of its adoption in' 1887, was as follows: “An Act to provide for the preventing of the evils of intemperance by Local Option in any county in this State and cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation and for other purposes.” The constitutional inhibition in section 28 of article 4 has been construed on many occasions by this court, and it has generally been said by this court that this section must
In People v. Beadle, 60 Mich. 22, it was unanimously ruled by the Supreme Court of that State, which had a constitutional provision in all respects like section 28 of article 4 of our Constitution, that under an act entitled, “An Act to regulate the sale of spirituous, malt, brewed, fermented and vinous liquors; to prohibit the sale of such liquors to minors, to intoxicated persons, and to persons in the hahit of getting intoxicated; to provide a remedy against persons selling liquors to husbands or children in certain cases; and to repeal all acts or parts of acts inconsistent herewith,” a section of the said act which provided: “Any person who, by false pretense, shall obtain any spirituous-, malt, brewed, fermented, or vinous liquors, or who shall be drunk in any hotel, tavern, inn or place of public business, or in any assemblage of people, collected together in any place for any purpose, or in any street, alley, lane-, highway, railway, or street car, or in any other public place, shall, on conviction thereof, be punished,” etc., was clearly repugnant to the constitutional provision above quoted and that by no reasonable construction could the purpose of this section be said to be embraced within the title of the act. The punishment of a person for being drunk without reference to where he obtained the means of intoxication could have no possible connection with the object of the act as set forth in its title-. That said section was nothing more or less than the in
The Constitution of Pennsylvania contains the same provision that is found in section 28 of article 4 of our Constitution. On the thirteenth of May, 1887, the Legislature of that State enacted a law entitled, “An Act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof.” And the seventeenth section of said act provided inter alia- that “it shall not be lawful for any person, with or without license, to furnish by gift to any person any spirituous, fermented or brewed liquors on Sunday.” Under that section one Doll was indicted. The facts appeared that he had no license for the sale of intoxicating liquors and did not deal therein. On Sunday, August 19, 1888, the prosecuting witness went to the private residence of the defendant upon business of his own, and while there the defendant gave the prosecuting witness a drink of whiskey, which he drank in the house; he paid nothing for the liquor, nor was any payment expected or demanded. Upon this state of facts, the court said, speaking of section 17: “This sweeping language extends to all persons within the Commonwealth, whether or not they be in the sale of intoxicating liquors, and makes it á criminal offense for any citizen in his own house to give a friend, or even a member of his own family, a glass of wine or beer on the first day of the week. If this provision be constitutional, we have nothing to do with its policy; that is a matter for the Legislature and not for the courts; but we are bound to consider objections alleged on constitutional grounds. . . . When the Act of 1887 was passed there were two classes of people in the Commonwealth, namely, those engaged in the sale
In view of this almost universal construction of a constitutional provision like section 28 of article 4 of our Constitution, it must be held that the construction which the learned circuit court placed upon the Local Option Act of this State, now known as article 3 of chapter 22, was such as to render it as applied to the facts of this ease unconstitutional and void, but we are cited, in this connection, to the decision of this court in the two oases of Ex parte Handler, 176 Mo. 383, and State v. Handler, 178 Mo. 38. In néither of these cases was the constitutionality of our Local Option Act challenged on the ground that it was repugnant to section 28 of article 4 of the Constitution and hence the point we have just ruled was not considered