State v. Morton

42 Mo. App. 64 | Mo. Ct. App. | 1890

Gill, J.

Defendant Morton was indicted, tried and found guilty of selling liquor, to-wit, one gill of whiskey, in Cass county, contrary to the provision of the local-option law in force at the time in said county. The cause was tried before a jury, who assessed a fine of three hundred dollars, on which a judgment was entered, and from which defendant appeals. The particular matter charged is that defendant met one Mers at Harrisonville, whereupon said Mers complained to Morton that it “ was a dry town,” etc., and defendant replied to Mers that, if he (Mers) would furnish the money, he (Morton) would supply the whiskey. Mers did produce the money (one dollar), and after an absence of a few minutes Morton returned to Mers and gave him a pint of whiskey with the return of fifty cents in change.

I. It is urged first that the evidence did not support the charge of selling whiskey, but that it only tended to show an agency ; that the defendant was simply employed as Mers’ agent to go and get him some whiskey. While the testimony might be subject to such a construction, as that defendant was agent for Mers in the purchase,’we still think the jury was justified in their finding that it was a sale by defendant to Mers. It seems the jury found the facts necessary to conviction, as incorporated in the following instructions, asked for by the state and given, without objection, on the part of defendant, to-wit:

“1. The court instructs the jury that a sale, in law, is the transmutation of personal property from one person to another for a price. If, therefore, you shall find, from the evidence, that the defendant bought or received whiskey in any quantity, and then sold, transferred and delivered it or any part thereof to the witness Mers, as charged in the indictment, for a certain consideration paid by said Mers, you shall find the defendant guilty, even though you may believe that the defendant bought or procured the same for the purpose of selling it to Mers.

“ 2. The court instructs the jury that in considering the question as to whether the defendant sold to the witness Mers whiskey as charged in the indictment, you are to consider all the facts and circumstances detailed in evidence ; and, if you shall find and believe from the evidence that defendant furnished or procured the said liquor himself, and that he afterwards sold and delivered the same or a part thereof to the witness Mers, you shall find the defendant guilty as charged, notwithstanding defendant may have purchased the said whiskey solely for the purpose of reselling and delivering the same to the witness Mers, and that defendant had-received from Mers the price in payment thereof before he bought the same.”

We think the evidence sufficient to warrant the jury in finding the defendant guilty of the offense charged, and sufficient to justify an affirmative answer to each of the hypothetical questions presented in these instructions, which we think succinctly and clearly presented the case to the jury.

II. Defendant in Ms brief complains of the court’s refusal to give his two instructions numbered 1 and 2. As to number 2, it is sufficient to say that- no such complaint was made in the motion for new trial. The specific error there pointed out to the trial court was its refusal to give- defendant’s instruction number 1, no mention being made of number 2.

It is well understood,' then, that such matter cannot be urged here as error for the first time. ‘

As to defendant’s instruction numbered 1, it was rightly refused, and for several reasons. It was entirely useless, since the instructions already given by the court comprised the law relating to a sale by defendant, and the long definitions of gift, barter, etc., made to appear in said refused instructions, were mere surplus-age, and calculated to confuse, rather than enlighten, the jury. Besides, this asked-for instruction erroneously told the jury that, unless Morton owned the whiskey which he procured for Mers, he could not be convicted. This is clearly not the law in such cases. Although Morton may have been the agent for the owner of the whiskey, and had no title himself, yet in selling to Mers (even as agent for another) he violated the law and was punishable therefor. State v. Durken, 23 Mo. App. 387; Schmidt v. State, 14 Mo. 137; Hays v. State, 13 Mo. 246. There is no merit in this appeal, and the judgment is affirmed.

All concur.