56 Mo. App. 423 | Mo. Ct. App. | 1894
— The defendant was convicted of selling liquor without a dramshop license. He assigns for error that the indictment on which he was tried is fatally defective, and that his motion in arrest of judgment should have been sustained. He also claims that the court admitted illegal evidence against him, and erred in its instructions to the jury.
The indictment charges the defendant with unlawfully selling intoxicating liquors in less quantity than three gallons, to-wit, two drinks of whiskey. The claims of insufficiency arise on the words italicized, which are claimed to be an insufficient specification. In State v. Cox, 29 Mo. 475, and State v. Fanning, 38 Mo. 409, it was held that indictments under this statute should aver the quantity sold. As, however, any quantity may be proved which is within the prohibition of the statute, the exact averment of the quantity is not an essential averment. The first error is, therefore, not wall assigned.
Upon the trial of the cause the defendant was a
It is well settled that, in laying a foundation for the impeachment of a witness, his attention must be called to the time, place and person involved in the intended contradiction. State v. Starr, 38 Mo. 270; State v. Foye, 53 Mo. 336. As the defendant’s attention had not been called to the place where he made the alleged contradictory státement, Mitchel’s statement, as far a,s it was offered for the purpose of impeaching the credit of the defendant as a witness, was inadmissible. But Mitchell’s testimony was admissible as independent evidence of the defendants’s admission of the illegal sale, and, as it was not objected to on the ground that it was offered out of its regular order -and should have
We see no error in the instruction complained of. It simply tells the jury that they are at liberty to consider the probability or improbability of the testimony of an impeached witness. The fact, even if established, that the general reputation of a witness for truth is bad, does not necessarily and as a matter of law, withdraw the consideration of his evidence from the jury. In this state it is customary to instruct the jury in a proper case that, if any witness has willfully sworn falsely to a material fact in the case, they may disregard his entire evidence, or are authorised to reject his evidence. Judge Richabdson in State v. Dwire, 25 Mo. 553, held that in a case where a witness has willfully sworn falsely to a material fact, the jury should be instructed by the court to disregard his testimony altogether; but his associates refused to agree to that view, and held that, while the jury may, they are not hound to, disregard testimony even of a perjured witness, as to facts touching which they may believe he testified the truth. Such has been the law in this state ever since. In State v. Patrick, 107 Mo. 147, an instruction given to the jury on this subject was condemned, because it told the jury in effect that, where a witness is corroborated by other credible evidence, or facts and circumstances, the jury were not at liberty to
If the instruction in this case on that subject was not full enough, the defendant was at liberty to have it supplemented. Mere non-direction is no ground for reversal in a case of misdemeanor.
Upon the whole record we find that, while the case was not tried with that formal precision with which it could and ought to have been tried, if the defendant had pleaded his objections upon the proper grounds at the various stages of the trial, yet no error has intervened materially affecting the merits, and justifying the reversal of the judgment.
. Judgment affirmed.