State v. Bearden

67 S.W. 973, 94 Mo. App. 134, 1902 Mo. App. LEXIS 541

• Court: Missouri Court of Appeals
• Decided: April 15, 1902
• Status: Published

Opinion

BARCLAY, J.

Defendant was convicted of the misdemeanor of 'selling distilled liquor on Sunday. He was fined $10 and took an appeal from the judgment.

The proceedings appear to be in all respects regular.

Two assignments of error are made by defendant’s counsel on this appeal.

1. Defendant claims that the trial court erred in refusing to declare the law to be- that the law was “intended to prevent the continuance of the regular business of the week on Sunday and is not intended as a law against single sales of liquor,” unless in continuation of the regular business of defendant during the secular days of the week.

The testimony in the case was simply that defendant for twenty-five cents sold a half-pint of whiskey to H. H. Ehodes, Sunday, April 14, 1901, in Butler county, Missouri. The business of defendant was not disclosed by the evidence. It was not even shown that he had a place of business. On these facts defendant claims that the foregoing request for an instruction should have been given, relying on State v. Crabtree, 27 Mo. 232, to sustain that claim. That was a prosecution for keeping open a grocery on Sunday and permitting persons to drink intoxicating liquors there. It was held that defendant was entitled to have the jury instructed that the facts in evidence would not constitute the offense charged, unless the acts were done or permitted to evade the law, or 'to allure customers, or to carry on the usual business of defendant.

But the court in that very case intimate. a distinction between it and other cases founded- on different provisions of the Sunday law. The decision is entirely in harmony with State v. Ambs, 20 Mo. 214, and State v. Heckler, 81 Mo. 417, in both of which the distinction between the offense of prosecuting one’s regular business on Sunday and that of.selling intoxicating liquors on that day, is pointed out. The statute itself clearly defines those acts as distinct offenses (R. S. 1899, sec. 2243).

The facts in evidence brought defendant within reach of the penalty prescribed for the selling of distilled liquors on Sunday, and the facts called for in his refused instruction constituted no defense.

We announce along with this judgment a similar ruling in State v. Lucas, 94 Mo. App. (St. L.) 117.

2. Touching the second assignment of error, which relates to the verification of the information, we need only refer to the decision of this court in State v. 'Patton, announced at the same time as this opinion, 94 Mo. App. (St. L.) 32, for a statement of the reasons which lead us to overrule that assignment.

3. We have scrutinized the record carefully, and finding no error we affirm the judgment.

Bland, P. J., and Goode, Jconcur.