176 Mo. App. 115 | Mo. Ct. App. | 1913
This appeal grows out of a charge by information, founded upon sections 7227, 7228 and 7229, Revised Statutes 1909, that Carrie Galliton, on March 24,1913, in Dent county, while the Local Option Law was in effect therein, ‘ ‘ did then and there unlawfully and wilfully keep and store for and did then
A summary of the evidence:
It was agreed by opposing counsel that the Local Option Law pertaining to intoxicating liquors was adopted in Dent county on September 6', 1906, and has ever since been in force therein.
. Two witnesses testified for the State. One, the sheriff of Dent county, testified that he knew the defendant and Lee Sprague; that defendant resided at Cuba, in Crawford county, and worked for a man named Hogle who was engaged in the wholesale liquor business; that he saw defendant, on March 24, 1913, at Salem, in Dent county, alight from the train which came from Cuba, and that she went from the depot toward town, alone, carrying the grip which she held in her hand when she alighted; that he did not see Lee Sprague get off the train, but heard him crying the name of some hotel while passengers alighted; that when defendant had proceeded but a short distance Sprague overtook her and relieved her of the grip, walking with her; that he (the witness) followed, and when they were three or four blocks from the depot he came up to them andasked them where they were going to put up, and she replied, “I am going to my aunt’s.” Quoting: “And so I said, ‘Whose grip is this?’ and she said, ‘It is mine.’ I said, ‘Then you are going to your aunt’s?’ and she said, ‘Yes.’ I said, ‘I want to go down where there is a light, I want to see what you have in here. ’ I said, ‘What have you got in here?’ and she said, ‘I have got my things in there. ’ And when we got down to where I could see she objected to me going into it, and I asked Sprague if he had any claim on that, before I opened it, and he said, ‘Yes, I’ll be honest about
- The court refused to give a peremptory instruction for the defendant.
The accused introduced two witnesses besides herself. The engineer on the train in which defendant and Sprague travelled from Cuba to Salem testified that he saw Sprague board the train at Cuba carrying the grip offered in evidence by the State. Another witness-, who was a passenger on the train, gave testimony to the same effect; also, that he had eaten a lunch at what he called “Plogle’s Restaurant” before leaving Cuba, and that Sprague was there; that as the train was nearing Salem, Sprague asked him to take the grip referred to and place it on the bus, saying he had to work for the hotel; that he (the witness) forgot about the grip, having engaged in conversation, and did not take it. Defendant as a witness in her own behalf testified that Sprague (whom she called Fatty) was on the train and brought the grip to her and asked her to take it off as he had to work for the hotel; that this was the first she knew of the grip; that she had the grip something like two minutes and did not know what it
The court refused to direct a verdict for the defendant.
At defendant’s, request, the jury was instructed that there was no evidence of defendant’s guilt of storing or delivering intoxicating liquors.
The court instructed' that under the Local Option Law it is unlawful for any person to keep' for another any intoxicating liquors, and that if the jury believed from the evidence that defendant did keep for one Lee Sprague one pint of whiskey they would find her guilty. The jury were cautioned in two. instructions given at defendant’s request that in order to .convict her of keeping they must believe beyond a reasonable doubt that defendant had and retained possession of the grip with the knowledge that it contained intoxicating liquors—that she knew it contained intoxicating liquors while she kept it for Sprague—and this point is again embodied in the State’s second instruction.
We are called upon in this case to declare whether, under section 7227, Revised Statutes 1909, every keeping for another of intoxicating liquors in a county which has adopted the Local Option Law, is unlawful.
Sections 7227 and 7228, Revised Statutes 1909, are as follows:
“Sec. 7227. Not to be kept, stored or delivered in local option counties.—No person shall keep, store or deliver for or to another person, in any county that has adopted or may hereafter adopt the Local Option Law, any intoxicating liquors whatsoever. ’ ’
“Sec. 7228. Exception to preceding section.—• Nothing in the. two next preceding sections shall be con
The letter of the statute in question is ,no broader than the spirit which prompted its enactment. Those counties in the State which had adopted the Local Option Law as a specific for what was deemed a public ill found that by reason of subterfuge and cunning evasion, the remedy was inadequate. Volumes of the appellate court reports contained the proof. Curative legislation was required. The General Assembly has sought to answer the demand, and, it may be assumed, will in the future make such enactments as will under the Constitution protect legal rights and yet provide the means with which to combat the schemes of the resourceful bootlegger. No hardship is likely to result. The State of Missouri in its wisdom, has chosen to localize the question of the traffic in intoxicating liquors. The will of the majority of the voters in each county is the supreme law on this question, and if the burden seems to bear too hard, it m,ay readily be thrown off. Until that is done it is to be assumed that every county which has duly adopted the Local Option Law stands, for the abolition of the liquor traffic, as well as the keeping, storing, etc., by one person for another, within its confines. The methods of obtaining liquor in local option counties have accordingly been restricted until it seems that almost the last word has been said. As a part of this general plan, section 7227, Revised Statutes 1909, was enacted by the General Assembly in 1907. It is plain and unambiguous and means just what it says. Our court has already held (State v. McMurtrey, 161 Mo. App. l. c. 411, 143 S. W. 521) that the “keeping” for another need not be such as is connected with an illegal sale in order to constitute a violation of the law. After a careful examination of the statute and the authorities cited in appellant’s brief, we declare,the law to be that under the
The defendant in this case as a witness in her own behalf admitted that she kept the grip containing intoxicating liquors for Lee Sprague. But appellant contends that to affirm this judgment is to stamp as criminal an act of courtesy. Not only in defendant’s instructions but in those given for the State as well, the jury, as a condition precedent to conviction, were
The State’s instruction No. 2 is criticised by appellant. We think the instruction was advantageous to her. It required more of the State than the law demanded. Besides the elements essential to a conviction, the additional element was introduced that the jury must find that she did it for the purpose of preventing.the fact being disclosed that Sprague had the whiskey and was bringing it to Salem. This, in fact, was a mere circumstance tending to show a guilty intent. Appellant cannot complain of an error committed in her favor. [State v. Burk, 234 Mo. l. c. 579, 137 S. W. 969; State v. Heath, 237 Mo. 255, 141 S. W. 26.]
It is said by appellant that this instruction was a
It appearing from the record that the accused had a fair and impartial trial and that her theory of the case was fully presented by the instructions, and finding no reversible error, the judgment of conviction is hereby affirmed.