State v. Hall

138 S.W. 45, 158 Mo. App. 123, 1911 Mo. App. LEXIS 455

Opinion

CAULFIELD, J.

(after stating the facts). — It was essential to the maintenance of the prosecution, as framed; that the state prove the defendants were licensed dramshop keepers. [Bachman v. Brown, 57 Mo. App. 68; State v. Reppetto, 66 Mo. App. 251.] The record of the county court granting the license to the defendants was primary evidence that the license was granted, that is, authorized to be issued, but not that it was issued. [State v Barnett, 110 Mo. App. 592, 85 S. W. 613.] The license was the best evidence of -such issuance. [State v. Sherman, 137 Mo. App. 70, 119 S. W. 479.] The record or memorandum kept ‘by the county clerk showing such issuance was but secondary evidence. [State v. Mulloy, 111 Mo. App. 679, 86 S. W. 569; State v. Reppetto, 66 Mo. App. 251; State v. Barnett, 110 Mo. App. 592, 85 S. W. 613.] And the testimony of witnesses, so far as it tended to prove that fact, was in the same class. [State v. Barnett, supra.] Before any of this secondary evidence was admissible, it was necessary to lay a foundation for its introduction by showing that the defendants had been notified to produce the license and had failed to do so. Its admission Avithout such foundation being laid was reversible error. [State v. Kurtz, 64 Mo. App. 123; State v. Reppetto, supra; State v. Barnett, supra; State v. Mulloy, supra; State v. Sherman, supra.]

Under the decisions the judgment must be reversed and the cause remanded. It is so ordered.

Reynolds, P. J., and.Nortoni, J,, concur.