156 Mo. App. 461 | Mo. Ct. App. | 1911
Defendant was convicted for a violation •of the Local Option Law and has appealed. The errors assigned relate to the admission and rejection of testimony, and the giving and refusing of instructions. The court instructed the jury that under the evidence the Local Option Law had been adopted in Dade county. This is assigned as error. The state offered in evidence the record of the county court, showing the result of the local option election, and the order of the court for
When the state offered testimony shOAving the result of the election and the order of the court for the publication of the notice of the result of the election it had made a prima facie case, showing the adoption of the Local Option Law. This prima facie case must stand until
In our view, the record offered does not show that the court did not, by order of record; designate the purpose for which the election was to be held, and name the day on which it was to be held. The record, as read, shows upon its face that it is incomplete. The court might very properly have taken up a consideration of the sufficiency of the petition and determined that question and decided that it would order an election upon that petition and made the order as they did make it upon one day, and have left the question as to when the election should be held to be determined upon another day, and they might very properly have determined that question at another time' and made another order of record, stating the purpose of the election and the day ou which it was to be held. If they did not do this it would have been an easy matter when the county clerk,, who is the custodian of the record, was upon the stand to have asked him the question whether the record found on page '59 of book 17 was the only record made in relation to the calling of the election, and if it were the only record, he could have readily said so and that
The testimony of the sale of liquor was by two Avitnesses Avho had been employed as detectives for the purpose of ascertaining whether or not this defendant and others had violated the Local Option Law. Defendant asked, and the court refused, the following in-, struction:
“Tiie court instructs the jury that upon their own testimony, the witnesses, Rudie and Wein, occupy no better position than that of an accomplice to an alleged crime and for such reason and on such account you are instructed to receive their testimony with great caution,
The defendant now insists that the refusal of this instruction was error. This instruction was properly refused for two reasons. One is that it tells the jury that they should not convict on the uncorroborated testimony of these witnesses. That is not the law in this state even if we were to regard them as accomplices. It was also properly refused for the reason that it was a comment upon the testimony. [State v. Oliphant, 128 Mo. App. 252, 107 S. W. 32; State v. Kennett, 132 S. W. 286.]
Defendant also asked, and the court refused, the following instruction:
“While in considering the testimony of the defendant you should consider that he is the defendant testifying in his own behalf, but you must not reject his testimony because he is the defendant, but you must weigh his evidence by the same rules as you weigh the testimony of every other witness.”
This instruction was erroneous because it told the jury that they could not reject defendant’s testimony because he was the defendant. The jury were properly instructed, in an instruction given by the court, that the defendant was a competent witness in his own behalf, and that it was the duty of the jury to consider his testimony, together with all the other evidence, but in determining what weight the jury should give to his testimony, they might take into consideration the fact that he was the person on trial and interested in the result of the verdict. This instruction Avas all that defendant was entitled to upon that question. The attention of the jury Avas called to the fact that he was a competent Avitness and that it was their duty to consider his testimony, but it also very properly told them that the Aveight to be given to his testimony was a question lor their consideration alone, and in determining that Aveight they might consider the fact that he was the de
The evidence tended to show that on the day the sale of liquor was claimed to have been made the two witnesses for the state, Wein and Reudi, were in defendant’s drug store and tried to buy liquor, but were refused because they had no prescription. The evidence upon the part of the state then further showed that Wein afterward procured a prescription and purchased one-half pint of liquor under it in the forenoon, and that later in the day these two witnesses were back in the drug store and each bought a half pint of whisky without having a prescription. At the close of the state’s testimony, counsel for defendant asked that the state be required to elect upon Avhich sale it would stand. The state did elect to stand upon the sale to the witness Reudi. During the introduction of the state’s testimony the defendant produced to the witness Wein a prescription so as to have it identified as the prescription upon which he had purchased liquor. When the state elected, at the close of its testimony, to seek a conviction upon the sale to Reudi, the court then stated that he would sustain the objection to the introduction of the prescription. On the part of the defense the defendant testified that the'Sale Avas made under the prescription; that the prescription called for three half pints: that he delivered one half
Further, if defendant wished to make the prescription competent it was necessary for him to have shown, or offered, to have shown, that the doctor who issued it was a regular registered and practicing physician. No such proof was offered and the court’s action in rejecting the prescription would have been justified for that reason alone if it had been otherwise competent. [State v. Milliken, 24 Mo. App. 462; State v. Kennett, 132 S. W. 286.]
After defendant had testified, as a witness, it was developed upon cross-examination that he had, on a former occasion, pleaded guilty to a 'violation of law by an illegal sale of liquor. Defendant’s counsel then sought to have defendant explain what the facts were connected with that sale and offered to show that the sale was made
Witnesses Avere also put upon the stand by the state in rebuttal, and testified that the general reputation of defendant for morality was bad in the community in which he lived. On cross-examination some of these Avitnesses stated that what they heard in relation to the defendant’s reputation Avas in relation to the illegal sale of intoxicating liquors. These Avitnesses Avere permitted, on cross-examination, to testify that they had heard that defendant had been convicted in á former .case, and also heard it was for a sale of liquor to be mixed with strychnine. This Avas proper because in that examination the question at issue was what the people had said about the defendant, and it was competent to bring out all they had said.
The judgment will be affirmed.