State v. Kolb

48 Mo. App. 269 | Mo. Ct. App. | 1892

Thompson, J.

The defendant was prosecuted under an indictment for selling liquor without a license, was found guilty, and sentenced to pay a fine of $110, to reverse which judgment he prosecutes this appeal. The indictment, by a misprision of- the clerk, is omitted from the transcript, rand we are, therefore, to conjecture as to what its terms were; for, although the printed abstract furnished us by counsel for the defendant sets out what purports-to be the substance of the indictment, yet the statute (R. S., sec. 2253), which authorizes the filing of printed abstracts of the record in lieu of a complete transcript in the supreme court and in this court, is found in the code of civil procedure, and does not apply to criminal cases. That the code of criminal procedure ■contemplates the filing of a complete transcript is shown by the provision of that code (R. S., sec. 4297), which dispenses with assignments of error in criminal cases, but requires the appellate court to render judgment upon the record.

Perhaps, we might stop here and affirm the judgment in the absence of a proper record upon which any error can be predicated, but it will be more satisfactory to notice the objection raised by counsel for the appellant. The first is that neither of the instructions given by the court told the jury that they must find from the evidence that the offense was committed in the county of Ripley, state of Missouri. As the indictment is not in the record, we do not, of course, know what venue was laid ; but the state, by the one witness which it offered, distinctly proved the selling by the defendant of one pint of whiskey in the county of Ripley, state of Missouri, and there does not appear to have been any dispute or question about the matter of .venue. It is undoubtedly the law in this state that it is the duty of the trial court in criminal cases to give ■correct instructions covering the whole law arising from the facts, whether such instructions be asked or not. State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149; State v. Palmer, 88 Mo. 568. But no case has been cited to us where a conviction has been reversed, because the judge omitted to include in the instructions given the element of the venue. In the present case it is impossible to conceive that the jury •could have been mistaken as to the venue, or that the failure to include this element in the instructions given could have prejudiced the defendant. This objection comes with ill grace from him, from the fact that in the instructions tendered by him, which were refused by the court, though obviously on other grounds, this ■same element of the venue was wholly omitted. We will not reverse the judgment in a misdemeanor, case for such an omission, unless there is reason to conclude that the defendant may have been prejudiced by it.

It is said that the indictment laid the date of the ■offense as the thirty-first day of August, 1889, though the indictment not being in the record, we do not know that such was the fact. Assuming, for the purposes of another of the defendant’s objections, that such was the fact, we find that the single witness who testified for the state was unable to swear, and refused to swear, that he purchased any intoxicating liquors from the defendant on that date. But he did swear that he purchased a pint of liquor from him in July or August of that year. It is objected to the evidence of this witness that a day certain had been laid in the indictment, and that there had been several indictments returned into court, charging the defendant with the same offense; and the objection stated that the time being alleged in each of these indictments, and the offenses being the same, the time and day alleged became material as a distinguishing feature by which one charge might be separated from another, etc. In other words, the object -of the objection was to bring the case within the ruling of this court in State v. Wilson, 89 Mo. App. 184. The objection wholly failed, from the fact that it was not proved that any other indictments were depending in the court against the defendant for the same or a similar offense. But the defendant did pub in evidence eight other indictments for selling liquor without a license, and it was admitted that they had all been nolle grossed. For the same reason instruction, numbered 1, which was predicated upon this theory, was properly refused by the court.

Equally untenable is the argument that the demurrer to the evidence should have been sustained, because no witness swore that the liquor bought of the defendant was intoxicating liquor, or that the purchase took place within one year next before the finding of the indictment. First, as to whether there was evidence that the state witness bought intoxicating liquors from the defendant. The witness was asked: “Bid you buy any intoxicating liquors from George Kolb at any time within one year next before the thirty-first day of August, 1889?” To which the witness answered: “I did buy some liquor from him, probably about a pint. I could not say what I paid, probably the customary price. I do not remember the price. I think perhaps it cost fifty cents. This was in Ripley county, Missouri. It might be considered whiskey.” Upon cross-examination the witness stated that it was about the latter part of August or July. “ I cannot state what day or when I bought it. It might be considered whiskey or spirits.” We think that this was sufficient to warrant the jury in finding a sale of intoxicating liquor, within the meaning of section 4ñ95, Revised Statutes. What we have already said disposes of the other part of the objection as to the date being proved to have been within one year prior to the returning of the indictment.

No other substantial question having been presented for our consideration, and no error appearing on the record, it is ordered that the judgment of the circuit court be affirmed.

All the j udges concur.