Missouri v. Jump

STURGIS, J. While the identification of defendant as the man who sold the whiskey is not as clear as it might be, yet, if that was the only question in the case, considering the somewhat unfriendly attitude of the State’s witnesses and the opportunity the jury had to determine this question from hearing the witnesses, seeing and observing the defendant and the environment, we would hold that this was a question for the jury and that this court would not interfere. “It is only in case of absence of substantial evidence to sustain the verdict that this court will interfere.” [State v. Mathews, 202 Mo. 143, 148, 100 S. W. 420.] The rule on appeals in criminal cases is much the same as in civil cases, that where there is any substantial evidence to sustain the verdict this court will not interfere. [State v. McGuire, 193 Mo. 215, 222, 91 S. W. 939; State v. Pipkin, 221 Mo. 543, 565, 120 S. W. 17; State v. Stuart, 116 Mo. App. 327, 330, 92 S. W. 345, and cases cited.] We are persuaded, however, that the information in this case is not sufficient to sustain a conviction. Omitting formal parts, it is as follows: “Tesley J. Luna, Prosecuting Attorney within and for the county of Ozark and State of Missouri, under his oath of office — 296 — (based upon tbe information of a complaint in writing by — —informs the court that W. R. Jump, on or about the 2Mh day of December, A. D. 1911, at the said county of Ozark and State of Missouri, did then and there tbe act of the Legislature of the State of Missouri, approved on tbe 5th, day of April 1887, commonly known as tbe Local Option Law, bad' been adopted and was in force as tbe law of tbe State of Missouri, within tbe county of Ozark, there being no city in said county having a population of twenty-five hundred inhabitants or more, and that on or about tbe 24th day of December 1911, in said county of Ozark, one W. R. Jump did then and there unlawfully sell intoxicating liquor, to-wit, one quart of whiskey for tbe price and sum of sixty-five cents, and that tbe said W. R. Jump, did not then and there have any Icense of any kind authorizing him to sell the same and that said sale was then and there made without any legal authority whatsoever to sell tbe same; contrary to tbe statute in such cases made and provided, and against tbe peace and dignity of tbe State.” There are a long line of cases in this State bolding that an information charging a violation of tbe Local Option Law must allege either the particular facts which show' that such law was adopted and put in force on a particular date or allege generally that such law bad been adopted and was in force on tbe day of the alleged violation. This is an essential averment „to -a good indictment or information and must be so definite as to leave nothing to intendment or implication. [State v. Hall, 130 Mo. App. 170, 174, 108 S. W. 1077, and cases cited; State v. Searcy, 39 Mo. App. 393; State v. Snider, 151 Mo. App. 699, 702, 132 S. W. 299; State v. Wainwright, 154 Mo. App. 653, 655, 136 S. W. 30; State v. Campbell, 137 Mo. App. 105, 108, 119 S. W. 494.] The above information is almost meaningless as to this- averment without striking out the words — 297 — printed in italics. It starts ont by charging that the defendant “on or about the 24th day of December, 1911, at the said county of Ozark and State of Missouri, did then and there, ’ ’ but, without stating what he did, breaks off into an allegation as to the Local Option Law having been adopted in that county. It reads as if the pleader meant to charge defendant with having done something in connection with the adoption of that law. Even if we are permitted to strike ont and disregard as surplusage the words in italics, then there is no charge as to when the Local Option Law was adopted and was in force in Ozark county. It then reads that such law “had been adopted and was in force,” without stating when, and that on a named date the defendant sold intoxicating liquor. It was held in State v. Hall, supra, that an indictment charging that on a certain past date the Local Option Law had teen adopted and was in force in a certain county and that on a later date the defendant sold intoxicants in said county, is not sufficient, because it could not be determined from such averment how long before the date fixed for the selling such law had been adopted and was in force; and, for aught that is alleged, such law may have been adopted more than four years before the alleged sale and been repealed by a new election. [State v. Foreman, 121 Mo. App. 502, 97 S. W. 269.] So here, such law may have been adopted and put in force in Ozark county at some time and yet not have been in force at the time of the alleged sale. It will not do to say that we can reject all the words in italics except the date and connect that with the adoption of the Local Option Law without doing violence to the language of the pleader, for it is evident that such date is only mentioned in connection with and fixing the time when the defendant did something and must perish with and be rejected as part of that surplus allegation. The same is true if 'we regard — 298 — as surplusage the similar allegation further down in the information as to what defendant “did then and there” except that it is there stated what defendant did. Read this information as we will, the only date, other than that given to identify the Local Option Act, is the date of the “did then and there” of the defendant. The pleader has given no other date except the one unmistakably connected with and fixing the time of what the defendant did. This is true of this date, December 24, 1911, both in the first part of the indictment and where it is repeated later in direct connection with the “did then and there unlawfully sell intoxicating liquors, to-wit,” etc. It seems to us that it would be doing greater violence to the language of the pleader to strike out as surplusage the later allegation, £ £ and that on or about the 24th day of December, 1911, in said county of Ozark, one W. R. Jump, did then and there,” for that is a part of the charge of, and directly connected with, the selling of intoxicating liquors. That breaks in two an otherwise complete sentence, severing the subject and part' of the predicate with the modifying words from the balance of the sentence and then by implication connects this balance of the sentence with the former allegation of “did then and there,” leaving a complete sentence and charge as to another matter inserted between the two. But even by doing that, it seems to us that the information is made no better. It still remains that the only daté given is of what defendant did and not of the adoption of the Local Option Law. It is argued that as only one date is given, other than the date identifyingthe Local Option Act, such date was evidently intended by the pleader to be’ the date on which the Local Option Act “had been adopted and was in force,” and that by clear implication the date on which the defendant is charged to have sold liquor is also the date on which it was intended to charge that — 299 — the Local Option Law had been adopted and was in force. The difficulty with this is that in criminal proceedings nothing material is to he taken hy implication or intendment. No principle of law has been more often quoted and laid, down than this. It was perhaps first formulated in these words in Hawkins Pleas of the Crown, Book 2, chap. 25', sec. 60, as is shown by a. quotation therefrom in State v. Hagan, 164 Mo. 654, 659, 65 S. W. 249. The part most often quoted is “that in an indictment nothing material shall be taken by intendment or implication. ’ ’ A further quotation, there given, states the principle in this language: “For it being the strict rule of law in these cases to have the substance of the fact expressed with precise certainty, the judges will suffer no argumentative certainty whatsoever to induce them to dispense with it.” In State v. Rector, 126 Mo. 328, 340, 23 S. W. 1074, the matter is stated thus: “In criminal prosecutions, everything constituting the offense must be set forth with certainty and clearness, nothing must be left to be implied. This is true of all felonies. Hawkins says: ‘That in an indictment nothing material shall be taken by intendment or implication.’ [2 Hawk. P. C., ch. 25, sec. 60.] ” In State v. Evans, 128 Mo. 406, 412, 31 S. W. 34, in speaking of an indictment less faulty than this one, the judge said: “As it is, the indictment is fatally defective in that it fails to state who it was that was cut, struck or stabbed. In such cases nothing material must be left to intendment or 'implication. [2 Hawk. P. C., eh. 25, sec. 61.] In criminal prosecutions everything constituting the offense must be set forth with certainty and clearness.” [See also to the same effect, State v. Furgerson, 152 Mo. 92, 97-8, 53 S. W. 427; State v. Austin, 113 Mo. 538, 21 S. W. 31; State v. Birks, 199 Mo. 263, 97 S. W. 578.] That this principle is applicable to misdemeanors as well as felonies is shown by State v. Hall, 130 Mo. App. 170, 174, 108 S. W. 1077; State v. Mc — 300 — Fadden, 151 Mo. App. 479, 483, 132 S. W. 267; State v. Latshaw, 63 Mo. App. 496, 500. A reading of the cases above cited will, we think, show conclusively that this information is not sufficient. This is not a case of mere faulty grammatical construction but a case of applying the date of defendant’s act to the adoption of the Local Option Law by mere implication and intendment. This case differs widely from that of State v. Snider, 151 Mo. App. 699, 132 S. W. 299. In that case the information was shown to allege that the Local Option Law was adopted in Christian county on July 13, 1905, and was and is in force at the time of-filing the information on August 9, 1909, the alleged violation being on August 5, 1909. It is then shown that if such law was adopted on July 13, 1905', and was still in force on August 9, 1909, it could not possibly have been repealed by a new election between those dates and, therefore, must have been in force on August 5, 1909. Here, however, there is no date whatever alleged as to when such law was adopted in Ozark county. The only date given is that of defendant’s act. We recognize that the same strictness is not required in indictments and informations for misdemeanors as for felonies and that immaterial words may at times be supplied or omitted by intendment or implication. Such, we think, is the holding in State v. Edwards, 19 Mo. 674; State v. Cox, 43 Mo. App. 328, and State v. Matheis, 44 Mo. App. 294. We agree, however, with State v. Hall, supra, that the allegation as to the time when the Local Option Law had been adopted and was in force is so material that it cannot be left to- implication or intendment. As this is an information and may be amended, the case is reversed and remanded. Farrington, J., concurs except as to the sufficiency of the evidence to sustain a conviction, and files a — 301 — separate opinion. Robertson, P. J., dissents as to the sufficiency of the information, and files a separate opinion.