31 Mo. 197 | Mo. | 1860
delivered the opinion of the court.
This was an indictment for selling intoxicating liquors without license. The defendant was indicted, by the same grand jury which found the present indictment, for two similar offences in two separate indictments. In the case now before us, the offence is alleged to have been committed on the 5th of October, 1858. There are two counts in the indictment, as there were in the other indictments, in which the offences arc charged to have been committed — the one on the 4th, and the other on the 7th of October, 1858. To the indictment the defendant pleaded a former conviction,' and gave the judgments against him on the two former indictments in evidence in support of his plea. There was but one witness, who testified in the cause, produced by the State. He said he saw the defendant sell liquor, at the fall term of that court in 1858, in quantities- less than a quart, to one R. Reed, and that he testified before the grand jury on said day, once in the forenoon and once in the afternoon on the day Reed bought the -liquor. Saw some half a dozen or more
The court instructed the jury that if the defendant, on Tuesday morning in October, 1858, and on Friday morning in October, 1858, sold to Reed intoxicating liquors in less quantities than a gallon, they will find him guilty ; that to sustain the plea of a former conviction, the defendant must show that he had been previously tried for the identical offence for which he is now on his trial. With another, the defendant asked the two following instructions, which were refused: “If the jury believe from the evidence that the defendant has been previously convicted upon the evidence of the witness McOufie Henry, and if they further find that witness Henry made the same statement upon such previous trial as he has made to this jury and testified to the same and also then as now, then the defendant has been once tried for this offence, and they should find him not guilty.” “ If the jury believe from the evidence that the defendant has been convicted on the testimony of one McCune Henry on two former indictments at the former trials for the same character of offence charged in the present indictment, and that said Henry testified on said two former trials to the same facts that he certifies to on the present trial, they should find the defendant not guilty.”
Each drink sold to the same or to different persons is a separate and distinct offence against the statute prohibiting the sale of intoxicating liquors. If the witness is to be believed, besides the sale to Reed he saw six or more persons buy and drink liquor at the defendant’s house whilst he was drinking with Reed. The defendant then had offended at least seven times against the statute, and because he had been punished for two of these offences, he would go excused for the rest. The burden of proving his plea was on the defendant. He could have satisfied the jury that he had been tried for the identical offence for which he was then on his trial. His inability to do this was his own fault. It lay in his having offended so often that he could not identify and prove each offence. Time is not material in stating the" offence; one may be charged' with selling on the 5th day and be convicted by proving that he sold on the 8th day of the month. A dramshop-keeper may sell on the saíne day to the same person four drinks at intervals; and, because two of these offences are proved by one witness, can not the same witness prove the other two ? and if his testimony at each trial be the same, will it follow therefore that the offences are identical ? It was not for the court or jury to know that the offences for which the defendant was tried were the same for which he had been already convicted; if he would maintain his plea, he must prove that they were the same.
the judgment will be affirmed.
