State v. Hogan

252 S.W. 90 | Mo. Ct. App. | 1923

Defendant was charged by information with the violation of section 3599, Revised Statutes 1919. It is charged that in the county of Newton and State of Missouri on February 12, 1922, defendant did willfully and unlawfully on the said 12th day of February, the same being the first day of the week commonly called Sunday, keep open a certain grocery store, and expose and offer for sale goods, wares and merchandise. A jury was waived and the cause tried before the court. Defendant was found guilty, and his punishment fixed at a fine of $25. After the usual motions he appealed.

About the only defense at the trial was that defendant is a Seventh Day Adventist and observed Saturday as the Sabbath. It was admitted that he kept his grocery store open on the day charged during the usual business hours. The evidence shows that he sold groceries, meats and feed. One witness stated that he bought some feed for his team under circumstances which may be said to constitute an immediate necessity. Defendant was charged under section 3599, Revised Statutes 1919, which prohibits, among other things, the exposing to sale of goods on Sunday. Section 3600 excepts from the provisions of section 3599 drugs and medicines, and provisions and other articles of immediate necessity; but there is no exception for members of a religious society by whom some other day than the first day of the week is observed as the Sabbath, as there is to section 3596 relating to work and labor.

Defendant was charged under section 3599 with exposing to sale goods, wares and merchandise. Section 3600 provides that section 3599 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity. No one is exempt from the provisions of section 3599 except as is provided in section 3600.

In this court defendant does not rely upon the exceptions to members of a religious society who observe some day other than the first day of the week as the Sabbath; but contends that what he sold should be construed as immediate necessaries. State v. Campbell, 206 Mo. 579, 105 S.W. 637 is relied upon. Defendant in that case was charged under the same section as is defendant in the cause at bar. There the charge was limited by instructions to the exposing of lemons for sale. An instruction in that case defined "expose for sale" as the keeping and showing for the purpose of selling, and again defined the term in another instruction to mean "to place in view with the purpose and intention of selling." These definition are not approved or disapproved in the opinion, but we think them correct. The court in the Campbell case held that lemons are both tion of sellin." These definitions are not approved or what is now section 3600. In the case at bar defendant exposed to sale groceries, meats and feed. Neither of these as a matter of law is excepted. Either may fall under provisions, but provisions are not excepted as a matter of law, as are drugs and medicines under section 3600. [State v. Ohmer, 34 Mo. App. 115.] Discussing the subject the court there said: "The object of the statute (now sec. 3599, R.S. 1919) under consideration was to close up all places of business and prevent ordinary traffic on Sunday. But the Legislature did not intend that this law should apply to the sale of drugs or medicine, and for obvious reasons; nor was it the intention of the Legislature that this law should apply to and prohibit the sale of articles of food or other necessary articles, when the necessity for the same was urgent and immediate. And we think that the `necessity' spoken of, must be of such a character that it could not reasonably have been foreseen or guarded against. To hold otherwise would result in the general sale of all kinds of food and other articles of necessity on the Sabbath."

Defendant in effect admitted that he exposed for sale his entire stock. He sold to those who desired to buy without regard to the question of immediate necessity. His demurrer was properly overruled.

The judgment below should be affirmed, and it is so ordered.Cox, P.J., and Farrington, J., concur.