137 Mo. App. 70 | Mo. Ct. App. | 1909
— On information of the prosecuting attorney of Jasper county, defendant was arrested, tried and convicted on the charge of a violation of section 3018, Revised Statutes 1899. The first point for a reversal of the judgment advanced by defendant who brought the case here by appeal was made for the first time in the trial court in his motion in arrest of judg
The objection to the information thus is stated by defendant in his brief: “The language used in the information is so indefinite and uncertain, and the several charges of the different offenses being so repugnant to each other, it becomes ineffective as a charge of any offense under the law against the defendant, and is an attempt to charge several different offenses in one count and is a misuse of the word ‘devised’ instead of the word ‘designed.’ ” [Citing State v. Lawrence, 178 Mo. 350; State v. Etchman, 184 Mo. 193.]
The information accurately defines two offenses against the statute and for that reason is duplicitous, since it fails to state them in separate counts. The statute makes it an offense' for a dramshop-keeper to set up and keep in his dramshop the devices described for gaming or playing games of chance, and also makes it a separate offense for him to permit such devices to be used in gaming or in playing games of chance. Being kindred, congruous and punishable by the same penalty, the two offenses may be joined in one information but should be stated in different counts. [State v. Nitch, 79 Mo. App. 99.] But defendant did not challenge the information on the ground of duplicity until he filed his motions for new trial and in arrest. “Duplicity in an indictment or infirmation is the joinder of two or more distinct offenses in one count.” [1 Bish., Crim. Proc. (3 Ed.), section 432.] It cannot be taken advantage of for the first time in arrest, but to avail defendant anything, must be made the subject of a motion to quash, a demurrer, or a motion to compel the State to elect. [State v. Fox, 148 Mo. 517.]
But the judgment must be reversed and the cause remanded because of prejudicial error committed by the court in the admission of secondary evidence offered by the State to prove that defendant was a licensed dram-shop-keeper. The license was the best evidence of that fact and should have been produced or its non-production accounted for. Notice should have been served on defendant to produce his license in order to lay a foundation for the introduction of secondary evidence. [State v. Barnett, 110 Mo. App. 592.] The information was filed December 5,1907, and the cause was tried December 13, 1907. Over the objection of defendant, the court permitted the State to introduce in evidence a notice served on defendant to produce his license. The return of the officer shows that this notice was served on defendant November 10, 1907, almost a month before the information was filed. Thinking that the date stated in the return was a mistake, the court suggested that the return be amended to correct the error, but this was not done, and we must assume that the return correctly gave the date of service. It goes without saying that a notice to produce documentary evidence at the trial of a case served on the defendant before the institution of the suit has no foundation on which to stand and must be treated as a nullity. Since the notice in question was ineffective for any purpose, it follows that no foundation was laid for the secondary evidence admitted by the, court.
The judgment is reversed and the cause remanded.