121 Mo. App. 374 | Mo. Ct. App. | 1906
On a trial before tbe jury in tbe circuit court, tbe defendant was convicted of selling intoxicating liquor in less quantity than three gallons without a license as a dramshop keeper. There is substantial evidence to support the verdict. The prosecuting witness gave testimony tending to show that in the month of March or April, 1905, he visited the defendant’s establishment in the city of Doniphan and expressed a desire to purchase a gallon of whiskey; that the defendant told him he could not sell him the whiskey but maybe he could fix it so that he could get it; that witness went out, procured a jug and returned; that the defendant thereupon filled the jug with a gallon of whiskey, for which witness placed three dollars, the price, on a barrel, and departed with the jug and contents; that it was in the month of March or April, the day was cold and a sleet storm was then prevailing; that defendant’s establishment. at the time was down “this side of the depot.”
1. The instructions given by the court covered the issues fully, gave defendant the benefit of a reasonable doubt and submitted the case fairly to the jury. The defendant does not complain of the instructions as given, but he does complain that the court erred in failing to instruct the .jury on the credibility of the witnesses. Now, there can be no possible merit in this assignment of error on the record before us, in view of the fact that the defendant did not request the court to so instruct. The defendant asked no instruction on the credibility of the witnesses nor otherwise, for that matter, and the record therefore presents a mere case of non-direction, which is not reversible error. Indeed, the matter of giving and refusing instructions on credibility, when requested in cases of this nature, is so largely vested in the sound discretion of the trial court that their refusal will only be condemned as error when it is manifest that the court, in refusing the request, abused
2. The prosecuting attorney made certain alleged improper remarks in his argument to the jury to which the defendant’s counsel interposed objections at the time. The court did not reprimand the prosecuting attorney, but did caution him to confine his remarks to the record. Notwithstanding the court’s caution, the prosecuting attorney continued insisting upon the same line of argument. There was no further objection made thereto by defendant’s counsel nor was an exception saved at the time to the action of the court in failing to administer a reprimand. In this State of the record, this court will decline to review the matter as error assigned. The defendant, by failing to preserve his exceptions thereto at the time, will be regarded as having waived his objections in that behalf and the rule is the same with respect to such matters of exception in both criminal and civil cases. [State v. West, 95 Mo. 139, 8 S. W. 354; State v. Hicks, 92 Mo. 431, 4 S. W. 742; State v. Hilsabeck, 132 Mo. 348, 34 S. W. 38; State v. Lamb, 141 Mo. 298, 42 S. W. 827.]
3. The defendant complains that the court erred in overruling his motion for á new trial on the grounds of newly discovered evidence, etc. The rule with respect to motions for new trial on the ground of newly-discovered evidence is that “it devolves upon the defendant to show; first, that the evidence came to his knowledge since the trial; second, that it was not owing to want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that it is not merely cumulative; fifth, that the object of the testimony is not merely to impeach the character or credibility of a witness; sixth, the affidavit of the witness himself should be produced or its absence accounted for.” [State v. Speritus, 191 Mo. 24, 90 S. W. 459;
4. The defendant filed the affidavits of two other witnesses, which averred that on the day preceding the trial, the prosecuting witness stated to them in substance that he was drunk when he testified before the grand jury in this case; that he did not know what he had stated before that body; that in fact he had never at any time bought any whiskey from this defendant, etc. This evidence is no more than a statement made by the prosecuting witness when not under oath contradictory to those given under oath on the witness-stand during the trial of the case, and as such, goes only to the credit of the witness. The proposed newly-discovered evidence did not g.o beyond this as did the contradictory statements in State v. Murray, 91 Mo. 95, 3 S. W. 397, and State v. Speritus, 191 Mo. 24, and therefore the court did not err in ruling that such newly-discovered evidence was insufficient to authorize setting aside the verdict and granting a new trial, as requested, for the reason that the proffered evidence tended only to impeach the credibility of the prosecuting witness, as
• We have been unable to discover reversible error in tbe record. Tbe judgment is therefore affirmed. It is so ordered.