45 Mo. 429 | Mo. | 1870
delivered the opinion of the court.
The appellant was indicted under the first section of the statute concerning peddlers, for selling goods, wares, and merchandise not the growth, produce, or manufacture of this State, without license. (2 Wagn. Stat. 979, § 1.) On the trial, the prosecution gave evidence proving the acts of selling and going from place to place, but no evidence was introduced to establish the character of the goods sold. The trial was before the court without a jury; and the appellant asked an instruction that, before the court could find him guilty, it must believe from the evidence that he dealt as a peddler without license, in selling goods, wares, and merchandise which were not the growth, produce, or manufacture of this State. This instruction the court refused to give, and then found the defendant guilty, and entered up judgment, assessing a. fine against him, which judgment the District Court affirmed. The only question is on which side was the burden of proof cast. The general rule is familiar to dll, that the burden of proof is on the party holding the affirmative; but to this rule there are some exceptions. Thus, in an indictment for keeping a ferry and ferrying people without license, or a dram-shop, and selling liquor without license, it is incumbent on the defendant to show that he is licensed. (Wheat v. State, 6 Mo. 455; Schmidt v. State, 14 Mo. 137.) In these cases the acts are in themselves unlawful, and the proof lies peculiarly
Reversed and remanded.
