36 Mo. App. 58 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The defendant was indicted in the circuit court of Ozark county for selling intoxicating liquor, to-wit: One half pint of alcohol, to be used as a beverage, in violation of the act of the legislature known as the local option law (A.cts of 1887, p. 179), which act, the indictment alleges, “was theretofore duly adopted in and for the said county, and was then and there in force in said county.”
He now urges that the court erred in allowing the-state to re-open its case after it had closed, for the purpose of introducing this evidence. It is to be observed that, so far as the record shows, the defendant did not object to this proceeding ; and if he had made the proper objection and saved his exceptions, it would have been unavailing, for nothing is better settled than the rule that whether a party will be permitted, after he has closed his case, to re-open it, for the purpose of giving some-additional evidence, is a question resting in the sound discretion of the trial court. 1 Thomp. Tr., sec. 348, and numerous cases cited. The rule applies in criminal' cases the same as in civil cases. . Webb v. State, 29 Ohio
Aside from this, it nowhere appears that this precise objection was taken in the court below. An objection on the general ground that evidence is incom. petent and inadmissible, which was the only objection taken in this case, would not bring this question to the attention of the opposite party or of the court; and if it had been brought to the attention of the opposite party we cannot doubt that the state would have proved at once that there is no town or city in Ozark county containing twenty-five hundred inhabitants. No rule of procedure is better settled in this state and elsewhere than the rule that objections to evidence will not be available on appeal or error unless the particular ground of objection is set out. Peck v. Chouteau, 91 Mo. 138; Shelton v. Durham, 76 Mo. 434; Primm v. Raboteau, 56 Mo. 407; Baier v. Berberich, 85 Mo. 50.
It is next objected that the court erred in permitting the state to prove, by the oral testimony of the publisher of a newspaper called the Ozark County News, that the result of the election called, on the question of putting in force in Ozark county the local option law, had been published in that paper four times, once a week for four consecutive weeks, as required by section 5 of the statute. The statute nowhere provides the manner in which the fact of the publication shall be proved. It does not require that it shall be proved in any way to the county court, or that any proof of the publication shall be spread upon the records of the county court. In the absence of such a statutory requirement, we must hold that it is the fact of publication in the mode prescribed by the statute, and not any particular method of proving the fact which puts the statute in force ; and hence that it was competent to prove the fact by the oral testimony of a witness, as was done in this case.
The judgment will be affirmed.