296 S.W. 190 | Mo. Ct. App. | 1927
The deputies of the constable went to the home of Higgins, in St. Louis County, and assuming to act under a search warrant, went into the basement of his home, arrested him, and took fifteen barrels of wine, a copper funnel, and other articles of personal property from the basement. Higgins was then proceeded against in the circuit court, by way of information, charging him with the illegal possession and sale of intoxicating liquors.
In the circuit court the search warrant was quashed and the State afterwards entered a nolle prosequi, and Higgins then demanded the return of his wine. This was refused and the wine was never returned to him.
The evidence, as offered on the part of Higgins, showed that the wine was made by him in 1913, and placed in barrels in his basement. The defendants offered expert testimony to the effect that the wine in question had not been manufactured that long. The seizure was made by the constable's deputies on December 8, 1923, and there was some expert testimony offered on the part of defendants to the effect that the wine was less than one year old. Higgins testified that he used the wine in his home and did not sell any; that each barrel contained about fifty gallons; that he had bought wine on a doctor's prescription since the Volstead Act went into effect, and that the value of the wine, at the time he demanded its return from the constable, was $10 per gallon, and the value of the barrels $8.50 each. This testimony, as to the value of the wine, was admitted over the objection and exception of defendant's counsel.
The questions raised here on appeal are that the court erred in allowing Higgins to give his opinion as to the value of the property, without first requiring him to qualify so that he might be able to properly give such evidence; and that the court erred in refusing defendant's counsel the right to cross-examine Higgins concerning a certain voluntary statement that he made with reference to his right to carry concealed weapons in St. Louis County. It is also insisted that the court erred in giving instruction No. 3, at the request of the plaintiff, which we will hereafter refer to.
Higgins obtained judgment against the defendants in the sum of $6000, and from this judgment the defendant American Surety Company appeals.
As to the proposition that the court erred in permitting Higgins to testify as to the value of the wine without first requiring him to qualify, it will be observed from the examination of the record that he testified that he knew the value of the wine about the time he demanded its return from the constable, and was permitted to state that its value was $10 per gallon. He had also purchased wine at a drug store on a doctor's prescription. He was the owner of *923 the property in question, and by reason of his ownership he was prima facie qualified to speak as to its value.
The general rule is thus stated in 22 C.J., p. 581, sec. 683:
"The mere fact of ownership of personal property is usually regarded as sufficient to qualify one to state his estimate of its value."
This general rule has been followed in Missouri in a number of cases, as will be seen by reference to Taylor v. St. Louis H.R. Co., 256 S.W. 499, and cases cited therein. There was no error in the admission of this testimony. In addition to being the owner of the property, his evidence as to value was evidently based, to a great extent, upon the price paid for the wine which he purchased lawfully on a doctor's perscription at the drug store.
It is also insisted that the court erred in refusing to allow appellant's counsel to cross-examine Higgins concerning his statement that he had a right to be in possession of a concealed weapon at the time of the seizure of his wine. The evidence discloses that the plaintiff was a private watchman in the city of St. Louis, and appellant's counsel was attempting to show that he made some demonstrations with a pistol at the time the officers seized his wine. Higgins stated that he had a right to carry a gun. The court did not refuse to permit counsel to examine him as to anything that took place at the time of the seizure, and while the officers were present. He was asked if he pulled a gun on these officers or attempted to shoot any of them. He answered that he did not. The court did not refuse to permit counsel to cross-examine him as to this transaction, but did sustain an objection to a question which was purely argumentative in character.
As to the next question urged as ground for reversal, namely, that the court erred in giving instruction No. 3 on behalf of Higgins, for the reason that the term "value" was not qualified, the court told the jury in this instruction that if their verdict was in favor of the plaintiff they would assess his damages in such sum as they found from the evidence was the value of the property on or about July 14, 1924. Defendant did not request any more definite statement as to the value of the wine, nor did they offer any instruction attempting to define the term or confine it within any narrower compass, and is, therefore, not in position to complain at this time. It appears that the case was fairly tried, and there is no error authorizing a reversal of the judgment. The judgment is, accordingly, affirmed.
Daues, P.J., and Becker, J., concur. *924
