State v. McCabe

67 S.W. 973, 94 Mo. App. 122, 1902 Mo. App. LEXIS 538

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

Opinion

BARCLAY, J.

This appeal is from a conviction for selling fermented and distilled liquors on Sunday. The defendants were jointly charged with the offense, and each was fined $50; both appealed in the usual manner.

The testimony tended to unfold the following state of facts:

Defendant McCabe conducted a saloon on .the ground floor of a hotel in Poplar Bluff, Missouri. Back of the saloon was a storeroom; from the latter a small lift or dumb-waiter was constructed in such a way as to afford a convenient means of transmitting to an upper room in the hotel.such liquid refreshments as might be ordered. The formula was for the patron in the upper room to announce what he would have, deposit on the dumb-waiter the customary price for his order, when the machinery'of the device would move by means of some human motive power on the ground floor. The dumbwaiter would descend with the funds and return with the refreshments as ordered.

On the Sunday in question, three men went to the upper room aforesaid and ordered beer and whiskey, respectively, in response to a question by defendant Gallagher, “What will you have V The customers put the money for their orders on the dumb-waiter which then disappeared from view, to reappear shortly with the liquors ordered. They were delivered to the purchasers.

There was no testimony that defendant Gallagher was in the employ of McOabe. The former denied any such employment on the day of the sales. There was proof, however, that the premises at the foot of the dumb-waiter, whence the liquid refreshments came forth, were in the possession of McOabe and were in immediate connection with his saloon.

We give a mere outline of the evidence; its complete particulars are unnecessary. It will suffice to say that it seems to us to warrant the inference of fact which the jury made, namely, that both defendants participated in the prohibited acts on the Sunday specified in the information.

Circumstantial evidence is quite as applicable to support cases of unlawful liquor-selling as it is to support charges of any other offense defined by law.

It is not needful to prolong the review of this case. Other decisions will be announced along with this, which further elucidate the views of the court on this subject. State v. Lucas, 94 Mo. App. (St. L.) 117; State v. Bearden, 94 Mo. App. (St. L.) 134.

2. We have examined tbe record fully. Finding no error in it we affirm tbe judgment.

Bland, P. J.} and Goode, J., concur.