State v. Gilson

| Mo. Ct. App. | Nov 6, 1905

ELLISON, J.

The defendant was indicted, tried, and convicted in Livingston county for selling intoxicating liquors without dramshop-keeper’s license.

One point urged by defendant on his appeal is that the indictment is insufficient in that there is nothing to show that the deliberation of the grand jury was in Livingston county; and that it is signed by the foreman of the jury as “foreman,” and by the prosecuting attorney as “prosecuting attorney,” but that it should have been signed by the foreman as “foreman of the grand jury,” and by the attorney as “prosecuting attorney of Livingston county.” That by not adding the words “of the grand jury” to the word “foreman,” and by omitting to add the words “of Livingston county” to the words “prosecuting attorney,” there was nothing to sufficiently and properly designate these officers. The objections are without merit. The indictment recites that the grand jurors were summoned from the body of Livingston county, that they were duly impaneled, etc. That was sufficient.

Another point made is that the court permitted the defendant to be cross-examined on matters not adverted to in examination in chief. The objections were the mere statement that “defendant objects” without giving any reason. That alone was sufficient to justify the court’s ruling; but in addition, we think the cross-examination permitted, as disclosed by the record, was proper.

We also think defendant mistaken in his statement that no venue was shown to the sales of liquor. The State’s witness testified to sales made on the 25th of December, 1903, and after that, “every day or two; week or two.” The witness did not remember with sufficient certainty to name the day of the month after the 25th of December. He bought a bottle of beer “a day or two before he came to the grand jury.” He stated that he made the purchase at “Wheeling, Livingston county, Missouri,” beyond question, referring to the purchases made of defendant.

We do not regard the objections to the instructions of the court as well founded. The defendant was indicted in three counts; the first charged a sale on the 25th day of December, 1903, and the second on January 1, 1904, and the third on January 14, 1904. He was found guilty on the first count only. There was no possible manner by which defendant could have been harmed by the instructions on the second and third counts. The real contest in the trial court was as to whether the prosecuting witness bought liquor of defendant on December 25th, as he is charged in the first count. On this, the evidence was ample to sustain a verdict. There was no error in refusing instructions offered by defendant.

We have examined all the points of objection urged for reversal and have concluded the case was fairly tried, and that we should not interfere. Judgment affirmed.

All concur.