State v. Goad , 296 Mo. 452 ( 1922 )

The appellant was indicted, tried, convicted and fined for issuing a prescription as a practicing physician for the use of intoxicating liquors without having obtained a permit so to do as required by Section 6592, Revised Statutes 1919. The offense with which the appellant is charged is a misdemeanor. Thus classified, the Supreme Court is without jurisdiction to entertain this appeal unless the record discloses that the construction of the Constitution of the United States or of this State was necessary to a determination of the matter at issue, or for a like reason the validity of a Federal statute was drawn in question. [Sec. 12, Art. 6, Mo. Constitution.]

The only reference to either the Federal or the State Constitution is that found in an instruction asked by the appellant and refused by the court, which is in the following language:

"5. The court instructs the jury that under the law and facts of this case they will acquit the defendant for the reason that the law under which this prosecution was had is unconstitutional and void because it contravenes the provisions of Section 28 of Article 4, Section 11 of Article 2, Section 32 of Article 2, of the Constitution of the State of Missouri, Article 4, Article 9, of the Amendments to the Constitution of the United States, and Section 2 of Article 4 of the Constitution of the United States."

I. In view of the condition of the record, which we must presume, in the absence of a showing to the contrary, is correct, we may for the time pass without determining the timeliness of the objection to the validity of the statute upon which the prosecution is based. The record discloses a fact more vitally affecting defendant's contention in this behalf. It is elementary in ourConflict With appellate procedure that an exception having beenConstitution. saved, in this instance to the refusal of an instruction, the error complained of must be preserved by incorporating it in the motion for a new trial. [Elley v. Caldwell, 158 Mo. 372; Baker v. Kansas City Ry. Co.,107 Mo. 230; Morgner v. Kister, 42 Mo. 466; Hope Lumber Co. v. Stewart, 241 S.W. (Mo. App.) l.c. 680.] As we said in Littlefield v. Littlefield, 272 Mo. 164, not only must the constitutional question be timely raised and decided by the court, but it must be preserved for review.

Supplementary to the fact that the contention has not been preserved, we held in Bealmer v. Insurance Co., 281 Mo. 495, in defining the manner in which this question should be raised to entitle it to consideration, that the mere assertion, as here, that the State statute is in conflict with certain numbered sections of the Constitution without a statement of their nature or the facts which create the conflict, will not confer jurisdiction. To a like effect is the ruling in State v. Swift Co., 270 Mo. 694; Canning Packing Co. v. Evans, 238 Mo. 599; State v. Christopher, 212 Mo. 244; Chapman v. Adams, 230 S.W. (Mo.) l.c. 81.

Other than as stated, no effort was made to preserve this point. Whether the contention be regarded as having lost its vitality in not being preserved or in having been abandoned by the appellant, it is eliminated from the record as constituting a basis for our jurisdiction. [Little River Dr. Dist. v. Houck,282 Mo. 458; Moore v. U. Rys. Co., 256 Mo. 165; Botts v. Wabash Ry. Co., 248 Mo. 56.]

II. Concerning the contention that the determination of this case is dependent upon the validity of a Federal statute, it appears, aside from the brief and the argument of counsel, that there is nothing in theValidity of record to sustain this contention. The onlyFederal reference to the statute, and this is inferential,Statute. is in the introduction in evidence of the Federal permit granted to the appellant to issue prescriptions. The purpose of this evidence was no doubt to base thereon a plea in bar in that a compliance with the Federal statute, which it may be conceded is concurrent with the State statute, rendered unnecessary the observance of the latter. There was, however, no further effort made to sustain this defense and the validity of the Federal statute was in nowise drawn in question. If made and preserved, it would have been but colorable and, hence, not a ground upon which to base a claim of jurisdiction. It is to be borne in mind that it is not the construction, but the validity of the Federal statute as determinative of an issue in the case, that is to be considered. [Chastain v. M., K. T. Ry. Co., 226 Mo. 94; Schwyhart v. Barrett, 223 Mo. 497; White Com. Co. v. Chicago Ry. Co.,157 Mo. 518.]

III. The filing of a motion in arrest alleging the State statute to be in violation of certain sections, designated by their numbers, of the Federal and State Constitutions does not remedy the failure of the appellant to preserve his objection to the action of the trial court in refusing to give the instruction above referred to. A motion in arrest does notMotion in preserve exceptions made during the progress of theArrest. trial. Its province is to call attention to errors on the face of the record which invalidate the proceeding. The refusal of the instruction complained of is not of this character. [State v. Gamma, 215 Mo. 100, and cases; State v. Swift Co., 270 Mo. 694.]

The appellate jurisdiction of the Supreme Court, so far as criminal cases is concerned, is confined to the reviewing and correcting of errors of trial courts. The adjudicating of an unconstitutional act to be valid by the trial court is a matter of exception and must be saved as such. [State v. Swan, 234 Mo. 275.]

IV. We have omitted from consideration the motion to quash the proceedings filed after the overruling of the motion for a new trial. Thus filed, it was utterly futile. If intended to assail either the indictment or the statute upon which it was based, the one as not charging an offense and the other asMotion to Quash not authorizing a prosecution, then it wasProceeding. unnecessary, as these defenses may be made at any time regardless of a motion of this character. If made in an effort to preserve the objection to the refusal of the instruction asked by the defendant, which we have discussed, the course pursued is not recognized by our procedure, and if it were recognized, the motion for a new trial is silent in regard thereto and a consideration of the contention is foreclosed.

Lacking the essentials to confer jurisdiction on this court, a discussion of the merits is beyond our purview. Where, however, neither the statute nor the indictment was assailed during the trial and the defense, aside from the introduction of the Federal permit, was based wholly on the sufficiency of the testimony, the contention as to our jurisdiction is, as courteously stated in some cases, but colorable; in others, as a sham proceeding to secure a review in this court rather than in the Court of Appeals. [Stegall v. Pigment Chem. Co., 263 Mo. 719.] Whether the course pursued is designated by one or the other of these terms, the case is wholly within the jurisdiction of the Springfield Court of Appeals, to which it is ordered transferred.

Higbee, P.J., concurs; David E. Blair, J., dissents.