State v. Geist

Missouri Court of Appeals

State v. Geist

195 S.W. 1050, 196 Mo. App. 393, 1917 Mo. App. LEXIS 104

CourtMissouri Court of Appeals

DecidedJune 11, 1917

StatusPublished

Cited by3 cases

This text of 195 S.W. 1050 (State v. Geist) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Geist, 195 S.W. 1050, 196 Mo. App. 393, 1917 Mo. App. LEXIS 104 (Mo. Ct. App. 1917).

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Opinions

ELLISON, P. J.

Defendant was charged generally and convicted of the offense of selling intoxicating liquors in Putnam county in violation of the Local Option Law in force in such county.

He kept a lunch room or restaurant and had a clerk or assistant named Martin. The evidence for the State related to sales at different times, said to have heen made to two men, one named Craft and the other Panes. An instruction was given in which it was submitted that if the jury believed from the evidence that defendant “sold Craft or Panes” intoxicating liquors, they would find him guilty. Following the reasoning in State v. Washington, 242 Mo. 401, and State v. McGrath, 73 Mo. 181, error was committed in giving this instruction.

It was made an issue whether a sale was made to either, and a part of the jury may have believed a sale was made to Craft but not to Panes, and the remaining jurors may have believed the converse. Thus •a verdict could have been reached under the instruc[394]*394tion without unanimity as to either. We cannot distinguish the case from those cited.

This is not a case where one offense is involved, it being a point of dispute as to which of two persons the offense was committed with. But it is a case which, under the evidence, involves two distinct offenses, one a sale to Graft and the other a sale to Ranes. If there had been but one offense in controversy and an uncertainty as to which of two persons was the purchaser, then an instruction that if the jury believed the sale was made to either, they should find the' defendant guilty would be proper. For, in such case, all of the jury could unite in a verdict that the offense was committed and find the defendant guilty, though they might not agree as to which of the two persons the sale was made to.

But where the State marks out, prima facie, two cases, one a sale to Craft and the other a sale to Ranes, and the defendant makgs a case contradicting both, then the entire jury must find that one or both these sales were made, and an instruction for the State must not be so worded, that less than the entire jury will be authorized to return a general verdict of guilty simply because they all believe he committed one or the other of the two offenses, but cannot agree as to which.

The judgment is reversed and the cause remanded.

All concur.

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ELLISON, P. J.

Defendant was charged generally and convicted of the offense of selling intoxicating liquors in Putnam county in violation of the Local Option Law in force in such county.

He kept a lunch room or restaurant and had a clerk or assistant named Martin. The evidence for the State related to sales at different times, said to have heen made to two men, one named Craft and the other Panes. An instruction was given in which it was submitted that if the jury believed from the evidence that defendant “sold Craft or Panes” intoxicating liquors, they would find him guilty. Following the reasoning in State v. Washington, 242 Mo. 401, and State v. McGrath, 73 Mo. 181, error was committed in giving this instruction.

It was made an issue whether a sale was made to either, and a part of the jury may have believed a sale was made to Craft but not to Panes, and the remaining jurors may have believed the converse. Thus •a verdict could have been reached under the instruc[394]*394tion without unanimity as to either. We cannot distinguish the case from those cited.

This is not a case where one offense is involved, it being a point of dispute as to which of two persons the offense was committed with. But it is a case which, under the evidence, involves two distinct offenses, one a sale to Graft and the other a sale to Ranes. If there had been but one offense in controversy and an uncertainty as to which of two persons was the purchaser, then an instruction that if the jury believed the sale was made to either, they should find the' defendant guilty would be proper. For, in such case, all of the jury could unite in a verdict that the offense was committed and find the defendant guilty, though they might not agree as to which of the two persons the sale was made to.

But where the State marks out, prima facie, two cases, one a sale to Craft and the other a sale to Ranes, and the defendant makgs a case contradicting both, then the entire jury must find that one or both these sales were made, and an instruction for the State must not be so worded, that less than the entire jury will be authorized to return a general verdict of guilty simply because they all believe he committed one or the other of the two offenses, but cannot agree as to which.

The judgment is reversed and the cause remanded.

All concur.

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195 S.W. 1050, 196 Mo. App. 393, 1917 Mo. App. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-geist-moctapp-1917.

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