161 Mo. App. 400 | Mo. Ct. App. | 1912
Lead Opinion
This is a proceeding by indictment in four counts against the defendant charging him with keeping, storing and delivering intoxicating liquors in Dent county, in violation of section 7227 of the Revised Statutes of 1909. The state dismissed as to the fourth count, and on trial before a jury, the defendant was convicted on the first count and acquitted on the second and third. The first count charged that the Local Option Law was in force in Dent county, and that while said law was in full force and effect, and on or about the 11th day of March, 1911, the defendant “did then and there deliver to another person, to-wit, Burt Organ, in a certain building there situate, certain intoxicating liquors.”
The other counts were in the same form but named other persons for whom the liquor was charged to have been stored, kept, and delivered.- Defendant has appealed.
It is first contended that the indictment is bad because three several offenses, to-wit, storing, keeping and delivering are charged in the same count. This objection is not well taken. [State v. Burns (Mo. Supreme Court), 140 S. W. 871; State v. Rawlings, 232 Mo. 544, 134 S. W. 530; State v. Currier & Moore; 225 Mo. 642, 125 S. W. 461.]
W. L. Hogle: “About as well as I remember Cliff (defendant) had given me a drink a time or two and I kinder thought I would reciprocate and I ordered a case of beer and I told him if he didn’t care I would bring it down and we would drink it up and I sent it down there and we did. I don’t think it was stored very long because other parties helped drink it and we drank it up.” In explaining why he could not give the exact date of the transaction he said: “If you ordered a case of beer every week or so or two or three cases every week, you don’t just know when you ordered it.” He testified further as follows: Q. ““Where was this beer placed?” A. “The best I remember we had it down in the cellar.” Q. “What was done with the case?” A. “Well I think it went back perhaps with some of his empties. I never thought any more about the case. I got credit at Rolla so it went back some time. I don’t know that he knows himself when it was shipped out. The drayman, as a rule, goes around here and picks lip empties where he hauls them.” He stated further that the beer was drunk by defendant and himself and such friends as either of them invited to help drink it.
George Elmer: Q. “Did you ever have any beer taken to the Commercial Hotel?” A. “I have been in on beer that was down there.” Q. “Where was that beer kept?”' A. “In. the basement.” Q. “What do you mean by being in on beer?” A. “Well, us fellows, we would pot our money and have it sent over.” Q. “Who did you give the money to?” A. “Well I would give Cliff the money. I don’t know when he would phone for some beer and he would or
Bert Organ: “Had a couple of cases of beer down there before the hotel was started. Think I ordered it myself. It was shipped in my name, but Cliff was in on it. It was kept in the basement till we drank it up. Was in on a barrel and a case a time or two but don’t remember the date or whose name it was shipped in. Grave Cliff the money once or twice. The barrel remained there three or four hours until we drank it up. There are 120 bottles in a barrel. Don’t know how many paid on it. I think there were 15 or 20 of us drinking it.”
M. F. Roberts: “Am sheriff of Dent county. Was in defendant’s basement and found there a eoun
Defendant testified in his own behalf and corroborated the witness Hogle as to the case of beer sent to his basement by Hogle then testified further that none of the other boys had any beer there in which he was not interested. Also Q. “You would make up the money and one in the crowd would order the beer ” A. '“Yes, sir, and if it was several cases we would have it shipped in two or three of the boys names and if it was one case we would have it shipped in one fellow’s name.” Q. “You remember the sheriff coming to the basement of the hotel there with you and looking at that 102 bottles?” A. “Yes, sir.” Q. “Do you remember who was in on that bunch of beer, who it belonged to?” A. “No, sir. I don’t remember now. I cannot figure out any one batch of beer because we had too much over there.” Q: “Was you boys order
The statute upon which this prosecution is based was enacted in 1907 and is in four sections which are now sections 7226-29; Statutes 1909. This prosecution is bottomed on section 7227 which is as follows: “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 of any kind whatsoever. The next section of the act which is now section 7228, Statutes 1909, is as follows.: “Nothing in the two next preceding-sections shall be construed to prohibit any person from ordering liquor for his own or family use where such liquor is sent direct to the person using same.”
It is now contended that a party who may be a part owner of the liquor comes within the exception in the last section above and since all the evidence shows defendant to have been a part owner of all the liquor he kept in - his basement, he is not amenable to the statute and a verdict of acquittal should have been directed. In determining this question it is important to discover from the evidence the relation the defendant bore to the liquor and his purpose in connection therewith. The evidence all tends in one direction and when summarized shows the following condition to have existed. Local option had been
On the above state of facts we are asked to hold that the conduct of defendant was innocent and not within the statute forbidding one to store or keep for or deliver to another intoxicating Jiquor. If the conduct of defendant was innocent and without any intention of violating the law and he was keeping the liquor for himself, merely, as the statute provides he may, why did he refuse to open the trunks and permit the sheriff to inspect their contents until coerced by the threat of the sheriff to break them open, and why would he divide up the order and ship part only in his own name and the remainder in the name of some other person? The defendant himself realized at the time that he was violating the law and if he was not it was not because his purpose was an innocent one but because he was mistaken in his judgment as to what would constitute a violation. It is contended that to come within the purview of this statute, the storing, keeping or delivering of liquor must be done to further sales in connection therewith. If it were done for that purpose it would clearly he within the statute (State v. Price, 229 Mo. 670, 129 S. W. 650; State v. Boehler, 148 Mo. App. 615, 128 S. W. 518), hut it does not follow that the storing, keeping or delivering is
Complaint is also lodged against the instructions. The court gave the following to which defendant objected and excepted. Number 5: “A person may, under the law, order beer for another but cannot keep and store it for him, and if you find from the evidence that the defendant made orders for beer for either of the witnesses, Hogle, Organ or Elmer, and after receiving it kept it stored in his cellar or basement for him (such witness) so that he (such witness) might go into the basement from time to time and get a bottle of the beer and drink it, this would be a keeping and storing of beer for such person as defined in those instructions and it would not make any difference in
Number 8: “In order to convict on any count of the indictment in this case you must find that defendant kept and stored beer for the person named in the said count of the indictment. . That he kept it stored in his cellar or basement and that he intended when he kept it so stored that such person might go into such basement either by himself or with defendant and get one or more bottles of such beer and drink it and that such witness would have the right to take some portion of the beer and appropriate it to his own use. It is not necessary to find that there was a distinct understanding as to how many bottles could be taken by such witness but if you find that there was an understanding between defendant and the witness that some of the bottles of beer might be appropriated by the witness to his own personal use and benefit and if the. defendant kept it stored for the witness with such understanding, this would be a keeping and storing of such beer for such witness.”
Defendant asked and the court refused the following instruction: “Although you may believe that defendant kept and stored beer for the witness as charged in the indictment yet if defendant was a part owner with the witness and others of said beer, then he had a right to keep and store the beer and you will .acquit him."
The instructions given as above set out, proceed upon the theory that if defendant ordered beer for the witnesses named in the indictment and after it was received, kept it for them with the understanding that the witness could go into the basement and drink or take away any of the bottles of beer that he might select then as to such beer the defendant would be storing and keeping it for the witness even though
It is suggested that if this defendant is guilty in this case and the instructions given correctly declare the law, then two or more perspns cannot under any circumstances order liquor together for their own or family use and have it shipped in the name of one and received and kept by him until the division is made. Whether this statute applies to that state of facts we do not deem it necessary to decide in this ease for that is not the fact in this case. The fact that this defendant had fitted up a counter in his basement with a locker and kept it full all the time with a reserve supply of 400 or more bottles concealed in drummers trunks in the sample room — the use of drummers trunks being, evidently, for the purpose
Concurrence Opinion
CONCURRING OPINION.
On the authority of State v. Burns, 140 S. W. 871, the defendant’s guilt “was established by his own testimony. It is not claimed that in ordering the beer he did so in the name of all the persons who had contributed to the purchase fund, or that he notified the seller that such others were interested in the transaction. The Burns case holds that when one person purchases liquors for another, he must give to the seller the name of such other, and a failure so to do makes the order for the liquor an unlawful one, and the person acting for the true buyer guilty of nnlawfully keeping such liquor all the time he has it in his possession.
The Supreme Court said that under such a state of facts the defendant was guilty, but if he had informed the seller that he wanted the whiskey for his neighbor and not for himself, he would have been innocent. In other words, if the defendant'had said to the seller, “My name is Prank Burns. I live at Mr. Vernon, Mo., and have a dollar that was given to me hy Mr. Alex Hixon, also of Mt. Vernon, Mo. This money was given to me by Mr. Hixon to purchase for him, the said Alex Hixon, one pint of whiskey. You will wrap up the whiskey and carefully mark the package for Mr. Alex Hixon, of Mt. Vernon, Mo., and make a note of the transaction,” he would have been innocent.
The reason for this formality is given by the court in the following language: “The statute, however, contemplates, that the buyer shall deal in his own name with the seller, and that the seller shall send the whisky directly to the buyer, knowing to whom he is sending it. It is important that the transaction should be. between the one who orders for his own use and the dealer who fills the order. Otherwise one could traffic in whisky in defiance of the statute by securing his customers and payment in advance, then buy the whisky in his own name, deliver it to his respective customers and, if charged under the statute, say, ‘I was merely a messenger for persons who ordered for their own use.’ ”
I think the defendant in the Burns case was innocent, if he acted in good faith and merely to accom modate his neighbor, whether he informed the seller of his agency or not. On the other hand, I believe he was guilty if he was really engaged in dealing in intoxicating liquors, and that it would have been no defense to prove that he told the seller he wanted the whiskey for his neighbor.
Under the statute, a druggist has the right to sell wine for sacramental purposes. Suppose the officers of a church desired wine for such purpose, and one of them applied to a druggist for wine, and the same was sold and delivered to him, but he failed to tell the druggist the names of the members of the congregation he was purchasing it for, would any court hold he was guilty of unlawfully storing, and keeping intoxicating liquor during all the time he had the wine in his possession, and waiting for the time to arrive when it was to be used?
While Judge Cox in the majority opinion, justifying the action of the court in overruling the demurrer, has properly set out the testimony against the defendant in its strongest light, and has drawn all the infer
The defendant testified, and was corroborated by the state’s witnesses, that from time to time, for a period of two years,-previous to his arrest, he and his friends had made up a purse and sent to Rolla for beer; that first one and then another attended to collecting the fund and making the order. The different names on the empty cases found in the basement at the time of the arrest, were accounted for in this manner, and fully corroborated the defendant’s testimony.
The defendant also testified, and was not contradicted, that the large number of empty bottles in the basement was due to the fact that they were allowed to accumulate for several months as the dray-man would not come after them or the empty cases until there was a sufficient quantity to justify the special trip. The fact that the beer was kept locked in the cupboard and trunks, was accounted for on the theory that the boys had been missing some of the bottles of beer, and they were satisfied that they had been taken by persons who had no interest in them, and therefore, they arranged to keep it locked, so that no one, except the owners, could have access to it. The large quantity of beer on hand was accounted for by the defendant and the state’s witnesses also. The testimony showed that an order had been made for beer, but the river between Rolla and Salem had been up so as to prevent a delivery over a certain route, and the boys made another order for eight cases to be shipped by express and without cancelling the first one. While the orders were made about ten days apart, and the shipments were made at different
The defendant testified that no one had been permitted to have any of the beer unless he was one of the common owners-thereof, and it may be said that the state made no attempt to prove that any beer had been sold by the defendant to any one. The testimony wholly failed to show that the defendant had gone to any expense or trouble to procure the counter or cupboard that were found in the basement. In fact, it was not claimed by the state that the counter was not an old one that had been stored in the basement.
It is intimated in the majority opinion that the defendant might have been keeping the beer for the profit he was making on his boarders. The evidence discloses that but one boarder ever had any interest in the beer, and it seems to me that it is a far-fetched assumption to say that the defendant may have been engaged in a business that would render him liable to a fine and imprisonment for the profit he might realize from one boarder.
There was no real conflict in the testimony, and when the transactions are fairly considered, it may well be said that the defendant and his associates were doing what has often been done in all parts of the state, to-wit: Making up a purse and sending for beer, and having it delivered at some convenient place where the owners have access to it from time to time. I adroit there were some inferences to the contrary, but the Constitution of this state guarantees to a citizen the right of trial by jury. As said by Judge Cox in Bank v. Redfearn, 141 Mo. App. 386, 125 S. W. 224: "The right of trial by jury is one of the sacred
If the defendant’s testimony was true, then when the boys were clubbing together and ordering the beer, and having it shipped and delivered at defendant’s basement, and there used by them, their right to do so was expressly recognized by the highest judicial authority in this state. On the 30th day of June, 1910, the Supreme Court, in. an opinion by Judge Gantt, and reported in 129 S. W. 650, construed the statute under which this defendant is prosecuted, and held that its provisions were limited to transactions by order houses. On May 17, 1910, the St. Louis Court of Appeals, in State v. Boehler, 148 Mo. App. 614, 128 S. W. 518, speaking through the presiding judge of that court, and construing the same statute, said: “The obvious intent of section 2 is to prevent any person acting as a keeper of what were known as ‘order houses.’ ”
The witness, Bert Organ, on whose testimony the defendant was convicted, testified that in September, 1910, he and the defendant ordered, together, a case of beer; that by common consent it was delivered at the basement of the defendant’s hotel, where it was kept until the owners drank it. Under the decision in the Burns case, this testimony justified the conviction in this case. Now it is perfectly clear that if the defendant or Organ had consulted any reputable attorney in this state, he would have been advised that there was no law in this state making such act a crime, and the attorney would have cited the decision of the Supreme Court as his authority.
The Legislature has the right to make it an offense to serve intoxicating liquors at a banquet, and it also has the right to make it an offense to serve the same at any social gathering, and further, to make it an offense for persons to club together and send and get intoxicating liquors for their own use, but in my judgment, the Legislature of this state has not made such acts a crime, and the courts are without power to legislate.
The Supreme Court of Kansas, has at all times, gone to the full length in upholding and affirming the judgment of the trial court assessing punishment on convictions Lor violating the prohibition laws of that state, and yet, during the present year, that court has held that where persons club together and order a keg or case of beer for their own use, they do not violate the letter or spirit of the Kansas prohibition law.
In People v. Peterson, 120 N. W. 570, the Supreme Court of Michigan considered a statute reading as follows: "It is a misdemeanor, punishable by fine or by imprisonment, for any person to himself, or by his clerk, agent or employee, directly or indirectly, manufacture, sell, keep for sale, give away, or furnish any vinous, malt, brewed, etc., liquors, or to keep a saloon or any other place where such liquors are manufactured, sold, stored for sale, given away, or furnished.” The defendant had served bottles of-beer to guests assembled at a surprise party at the defendant’s home. In discharging the defendant, the Su
It seems to me, if the defendant in good faith, and without any intent to sell or to deal in the beer for profit, ordered it in his own name, for the use only of himself and his co-owners, that he was not guilty of a crime. On the other hand, if he was using the method simply as a means to defeat the law, then he should be severely punished. I believe the court should by proper instructions, lift the veil of formality and permit the jury to pass upon the real character of the defendant’s conduct.
It has always been the practice in these liquor cases, to submit to the jury the question whether the defendant acted in good faith, or whether he employed the means he used as a mere subterfuge for the purpose of defeating the law. [State v. McCance, 110 Mo. 398, 19 S. W. 648; State ex rel. Bell v. St. Louis Club, 125 Mo. 308, 28 S. W. 604; State v. Clow, 131 Mo. App. 548, 110 S. W. 632.]
Section 7215 of the Revised Statutes 1909, provides that any sale of intoxicating liquor made to a minor, by any clerk of a dramshop keeper, shall be deemed as the act of such dramshop keeper. Section 7213 makes it an offense to sell intoxicating liquors to minors. Our Supreme Court long since held that it is a defense for the dramshop keeper, where the sale is made by his agent or clerk, to prove that it was made in his absence and against his instructions given in good faith. [State v. McCance, supra.] This is based upon the universally recognized rule that the letter of the statute must sometimes be cut down to conform to its evident spirit and intent. [Kane v. Railroad, 112 Mo. 34, 20 S. W. 532; Keeney v. McVoy, 206 Mo. 42, 103 S. W. 946.]
While it is my duty, under the Constitution, to follow the Burns case, .and while I shall do so in this case, and vote to affirm the judgment, I do not understand the Constitution requires me to say that the decision I am following is good law, when I do not believe it is.