182 Mo. App. 176 | Mo. Ct. App. | 1914
Lead Opinion
The defendants in this case were convicted of violating the Local Option Law in Phelps
The information in the present case charges, as did the information in the other case, that the Local Option Law was in full force and effect in Phelps county at the time the offense was.committed and the appellants are making the same objection in this case as in that case as to the sufficiency of the information for want of an averment that said, law had been adopted. Our ruling in the other case, which is adopted here, disposes of this contention and the point is ruled against the appellants.
The appellants also pleaded the former conviction in bar to this action, but the testimony discloses a different sale and to a different individual in this case and the instructions were confined to this other and different sale, which the jury found to be a different sale, than those upon which the conviction was
In addition to- what is shown as to the German-American Alliance or Germania Verein in the former case, in the case at bar there is some evidence tending to prove that it is a corporation organized under the laws of this State and that the tickets were only issued to members of the corporation, and that the corporation owned the property and goods located at the place where the Germania Verein was operating and was disposing of the intoxicants to such members only by means of the tickets issued and punched as in the other case.
The defendants requested and the court refused to give the following instruction: “The court instructs the jury that if you believe and find from the evidence that the liquors kept and served in the building in which the alleged sales are claimed to have been made was the property of the German-American Alliance of Rolla, Mo. (a corporation), and purchased by the funds of such corporation, and that the parties to whom such liquors were served were members of such corporation and that such corporation was organized in good faith and not for the purpose of evading the liquor laws, and that the defendants, as members or officers of such corporation, served or delivered liquors to witness Paulsell, and at the time the said Paulsell was a member in good standing of said corporation, you will find the defendants and each of them not guilty.” The appellants complain of the refusal of this instruction and contend that they are exempt from prosecution and conviction for selling intoxicating liquors under the holding of the Supreme Court in the case of State ex rel. v. St. Louis Club, 125 Mo. 308, 319, 28 S. W. 604. We think, however, that the facts upon which that decision is based are entirely different from the facts involved here. It is there said that the chief purpose of that organization was
If the defendants desired to test their right to serve intoxicating liquors to members of the corporation in local option territory, the burden was upon them to offer some evidence that their organization comes within the rule announced in the St. Louis Club case. The general rule is that even where it is essential to allege in an information a negative which lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party. [State v. Lipscomb, 52 Mo. 32; State v. Edwards, 60 Mo. 490; State v. Miller, 182 Mo. 370, 81 S. W. 867.] If this club was organized and maintained in good faith for legitimate purposes and is such as could legally have served intoxicating liquors to its members in an incidental way and was exempt from the general rule prohibiting the sale of intoxicating liquors, such facts were peculiarly within the defend
In State v. Robinson, 163 Mo. App. 221, 224, 146 S. W. 456, it is held by the Kansas City Court of Appeals that an incidental sale of intoxicating liquors in local option territory even by a bona fide incorporated club or society to a member thereof is unlawful; that a corporation cannot authorize an unlawful sale by its offie'ers and agents and that such officer or agent cannot shield himself from the penalties of the law because he acted for such corporation. The court there said: “There is nothing in the decision of the Supreme Court in State ex rel. v. St. Louis Club, 125 Mo. l. c. 317, at variance with what we have just said. The action in that case was for an alleged violation of the dramshop act and it was held that a corporation was not “a person” within the meaning of that act, but it was not said that a corporation, through its agents, could sell intoxicants in defiance of the law. The opinion in that case is controlling authority for the proposition that an incorporated club, in a city under the dramshop act, which in good faith and merely in an incidental way, serves liquors to its members, is not guilty of a technical sale of intoxicating liquors under the dramshop act. ... It will be noted that the court is careful to say that the transaction in question was ‘not a sale of liqtior . . . within the meaning and purview of our dramshop act’ and when carefully analyzed the opinion discloses a manifest pur
Learned counsel for the State have attacked the doctrine of the St. Louis Club case as being wrong in principle and contrary to the great weight of authority. It is said to be wrong in principle as applied to an incorporated club, because of the unquestioned law that in such case the ownership of the property is in the-corporate, entity, separate and distinct from its members, and the rule stated in that case as the basis of the decision, taken from Black on Intoxicating Liquors, 142, that “where a social club as in this case is clearly a bona fide,organization, with a limited membership, and admission into which cannot be obtained by any person at His pleasure and its property is act-pally owned in common by its members, a distribution
The instructions in this case are similar to those copied and commented on in the other case. The instructions are less objectionable than the ones there noted and what we there said is applicable to this case. The instructions are correct as to the defendants Zehnder and Kolb. Instruction numbered three is erroneous as to defendant Diirr. The only theory supported by the evidence on which he could be convicted, that he with a common design and intent signed and authenticated the tickets which Kolb sold and on which Zehnder furnished .intoxicating liquors, was not submitted to the jury.
It results that the case is affirmed as to defendants Zehnder and Kolb, and reversed and remanded for further trial as to defendant Diirr.
Concurrence Opinion
concurs in the disposition of the case as to defendants Zehnder and Kolb, but dissents