170 Mo. App. 90 | Mo. Ct. App. | 1913
The defendant was indicted, tried and convicted in the circuit court of Chariton county for an alleged violation of article 3, chapter 63, Revised Statutes 1909, commonly known as the Local Option Law. The offense is alleged to have consisted of a sale of beer to the prosecuting witness J. W. Garrett, “on or about January 1, 1912, when said law was in full force and effect in said county.”
The first point presented by defendant for a reversal of the judgment is that the court erred in overruling his objection to the introduction in evidence of
The part of the record attacked by the objection is the order of the county court for a special election. The statute provides (Sec. 7238, R. S. 1909) “the ■county court of such county shall order an election to be held in such county at the usual voting precincts for holding any general election . . . such election ■shall be conducted, the returns thereof made and the result thereof ascertained and determined in accordance in all respects with the laws of this State governing general elections for county officers ... no one shall be entitled to vote who is a resident of any incorporated town having a population of twenty-five hundred inhabitants or more or who is not a qualified voter of such county.”
The court ordered “that a special election be held in said county at the usual voting precincts at which general elections for State officers are held on the 17th day of March, 1908, to determine whether or not spirituous and intoxicating liquors, including wine and beer shall be sold within the limits of said county, and the tickets to be voted by the voters in said election shall have printed or written on them the words: ‘For the sale of intoxicating liquors.’ ‘Against the sale of intoxicating liquors.’ ‘(Erase the clause you do not want.) ’
“It'is further ordered that said election shall be conducted, the returns thereof made and the result thereof ascertained and determined according in all respects with the laws of this State governing general elections for county officers, and the result thereof shall be entered upon the records of this court and the
The point ag'ainst the order is that it failed to state that the question at issue should be submitted to the qualified voters.
The statute does not require the order to contain such statement. It provides that none but qualified voters shall be allowed to vote at such special election and requires that an order for such election shall be made only on the filing- of a petition therefor signed by one-tenth of the qualified voters of the county. It is essential that the record show compliance with these requirements (State v. McCord, 207 Mo. 519), and compliance with them does appear on the face of the record in evidence. The order for a special election to be conducted “in accordance in all respects with the laws of this State” in legal effect was an order for an election at which none but legally qualified voters would be allowed to participate as voters.
The next point argued by counsel for defendant is that the demurrer to the evidence offered by him should have been sustained on the ground that the evidence’ introduced by the State ’shows that the beer in question was purchased by the prosecuting witness Garrett of a liquor dealer in another county and that defendant merely acted as the agent of the witness in ordering the beer. The evidence of the State does not support such inference. The only conclusion to be drawn from it is that defendant was making surreptitious sales of intoxicating liquors in Chariton county in violation of the Local Option Law and that the sale in controversy was made in the course of that unlawful and secret business. Garrett paid him the price he demanded for a case of bottled beer and defendant had a beer dealer in Moberly fill the order. The transaction was not between Garrett and the Moberly dealer. They sustained- no contractual relations. Defendant
The case is not at all analogous to that determined by the Supreme Court in State v. Rosenberger, 212 Mo. l. c. 645. A careful inspection of the record, convinces. us that the cause was tried without the commission of prejudicial error and accordingly the judgment is affirmed.
