State v. Sexton

GRAY, J.

On the 4th day of March, 1909, the prosecuting attorney of Dent county filed an information before a justice of the peace of Spring Creek township in said county, charging the defendant with a violation of the Local Option Law, relating to the sale of intoxicating liquors. A change of venue was taken to another justice of the peace, before whom the defendant was tried and convicted, and appealed to the circuit court of said county, where he was again tried, on the 19th day of April, 1909, and convicted, and his punishment assessed at a fine of $¿00 and six months imprisonment in the county jail. The defendant has appealed to this court.

The evidence on behalf of the State, tended to prove that the defendant sold a half pint of whiskey to Mark Thornton for thirty-five cents, in February, 1909. After Thornton had testified to the sale, the court permitted evidence to be offered, proving that a government retail liquor dealer’s license was found hanging on the *697 wall of tbe barn occupied by tbe defendant, about tbe time that Tbornton testified tbe sale was made to bim. This license stood in tbe name of Sexton & Company, and it was further shown that tbe marshal of tbe city and tbe deputy sheriff of tbe county, at tbe time they found this license, found three quarts of whiskey bid under tbe bay in tbe defendant’s bam.

Tbe State was permitted to prove by an express agent in tbe city of Salem, that shipments of intoxicating liquors were made to tbe defendant during tbe months of January and February, 1909, and that these shipments came about weekly. Tbe sale to tbe witness, Tbornton, if made, was not at tbe barn of defendant, but at a distant place. We see no error in admitting tbe above testimony. Tbe government license to retail intoxicating liquors and running in tbe name of Sexton & Company, and posted on tbe wall of tbe barn occupied by tbe defendant, was a circumstance that tbe jury bad tbe. right to consider, in passing upon tbe question whether or not tbe defendant was selling intoxicating liquors in violation of tbe Local Option Law. Tbe fact that be was receiving, several times each month, shipments of intoxicating liquors, was also a circumstance to be submitted to tbe jury.

It is urged by tbe defendant, that tbe Local Option Law has never been legally put in force in Dent county, for tbe reasons that the notice of tbe special election was not published for tbe requisite length of time, and that proper notice of tbe result of tbe election was not given. Tbe election was ordered by tbe county court on tbe 10th day of May, 1906, and was called for tbe 9th day of June, 1906. It was ordered by the court that publication be made, notifying tbe voters of the purpose of tbe election, and that tbe same be published in tbe Salem Monitor, a newspaper published in said county, for four consecutive weeks. Tbe facts shown by tbe evidence are, that tbe notice was published on tbe 10th, *698 17th, 24th and 31st days of May, and the 9th day of June, 1906.

The rule adopted for counting the twenty-eight days’ notice necessary for the special election under the Local Option Law is: That the day of the first publication he excluded, and the day of the election included. [State ex rel. v. Cordell, 117 S. W. 655 ; State v. Tucker, 32 Mo. App. 620 .]

In State ex rel. v. Cordell, supra, the last publication was on the day of the election, and. the St. Louis Court of Appeals, in an opinion by Judge Goode, rendered on the 23rd day of March, 1909, held the notice sufficient.

The county court, at its August term, made a complete record of the action of the court in declaring the result of the election, and ordered the same to be published for four weeks in the said Salem Monitor, and the evidence showed that the notice was published in accordance with this order of the court. In our judgment, the evidence showed that the Local Option Law had been legally adopted.

The information was filed before a justice of the peace of Spring Creek township, but there was no evidence offered to prove that the offense was committed in Spring Creek township-. In 1907, section 2748 of the Revised Statutes 1899, was amended and the following added thereto: “Provided, that all prosecutions before justices of the peace for misdemeanor shall be commenced and prosecuted in the township wherein the offense is alleged to have been committed.” It is claimed by appellant that this is jurisdictional and -must be shown by the record.

So far as we have been able to ascertain, this amendment has never been construed by the appellate courts of this State. It is a general rule, that inasmuch as the justice of the peace has only such jurisdiction as the statute confers upon him, the facts giving such jurisdiction must affirmatively appear on the face of the proceedings. [Barnes v. Plessner, 121 Mo. App. 677 , *699 97 S. W. 626 ; Shaw v. Railroad, 110 Mo. App. 561 , 85 S. W. 611 ; Patchen v. Durrett, 116 Mo. App. 437 , 92 S. W. 721 ; Warden v. Railroad, 78 Mo. App. 664 ; Briggs v. Railroad, 111 Mo. 168 , 20 S. W. 32 .]

It must also be conceded by this court, that the Legislature has the undoubted right, in reference to statutory misdemeanors, to say in what particular jurisdiction they shall be tried, and to make that jurisdiction exclusive of all others. [State v. Gordon, 50 Mo. 383 ; State v. Hall, 189 Mo. 262 , 87 S. W. 1181 .]

In State v. Hall, the defendant was charged with murder in the second degree. The Act of March, 1897, provided that the circuit court of Lewis county should hold two of its terms each year in the town of Canton, and said court, while holding its terms at Canton, was restricted to jurisdiction in those cases alone, which arose in a certain part of Lewis county. It was claimed that it must affirmatively appear in the information filed in said court, that the ofíense complained of was committed in the part of the county over which said court had jurisdiction. The court held, that inasmuch as the court was one of general criminal jurisdiction, it was not necessary to state such fact in the information. Unless the court was of the opinion that such an allegation is necessary in an information filed before a court of limited jurisdiction, there was no reason for the court limiting its declaration.to courts of general jurisdiction.

While the statute, prior to the amendment, made the jurisdiction of the justices in criminal cases, concurrent with the circuit court, coextensive with their respective counties, yet the amendment is mandatory, and provides that all prosecutions for misdemeanors shall be commenced and prosecuted in the township wherein the offense is alleged to have been committed; provided, that the defendant may take a change of venue as in other criminal cases.

Does the word “alleged” in the statute, have refer *700 ence to the place named in the information, and that the information mnst state the township in which the offense was committed; or, does it mean that the prosecution shall he commenced before some justice of the peace in the township in which the alleged offense was committed? Prior to this amendment, the prosecution could be instituted before any justice of the peace of the county in which the offense was committed. If it has reference to the allegation in the information, then under section 2527, Revised Statutes 1899, the naming of the township in the margin of the information, is sufficient to give the justice jurisdiction, no matter in what township the offense was really committed.

We believe it was the intention of the Legislature that the prosecution should be commenced in the township in which the alleged offense was committed. If this is true, we can see no reason why the State should not be required to prove the township in which the offense was committed, the same as it has to prove the county in which the offense was committed.

In McCarg v. Burr, 186 N. Y. 467 , the plaintiff sued a justice of the peace for false imprisonment. The defendant had issued a warrant for the arrest of plaintiff and made it returnable before him as justice of the peace. The law provided that a justice, when satisfied that a crime has been committed, should issue his warrant directing that the defendant be brought before him, but if the offense was committed in another town, then the justice must direct that the defendant be brought before a justice of the town in which the offense was committed. It was claimed that the defendant issued the warrant and made it returnable before himself, instead of before a justice of another town, where it was claimed the offense was committed. The court held that the defendant had no jurisdiction to try the plaintiff for the alleged offense; the warrant was invalid and void, and all acts of the defendant subsequently thereon were without jurisdiction, and that the defendant was *701 a trespasser. In speaking of tbe duty of tbe justice, tbe court said: “It behooved him, in taking cognizance of tbe offense complained of, to look into tbe provisions of tbe statute, and, bad be done so, bis lack of jurisdiction would have been apparent. Tbe objection of tbe plaintiff to tbe jurisdiction of tbe justice was, always, available to him and be was entitled, at any time, to insist that be could not be held nor tried for tbe alleged offense.”

Tbe jurisdiction of tbe justice before whom this information was filed, depended upon tbe question as to whether tbe alleged offense was committed in bis township. As tbe evidence does not disclose, we cannot say that tbe justice bad jurisdiction to try tbe defendant, and if no jurisdiction was in tbe justice court, none was acquired by tbe circuit court on appeal.

On a new trial, it can be shown in what township tbe offense was committed, and for this reason, we reverse tbe judgment and remand tbe cause for new trial.

All concur.