39 Mo. App. 114 | Mo. Ct. App. | 1890
delivered the opinion of the court.
The defendant was indicted, tried and convicted in the circuit court of Butler county for selling intoxicating liquors in less quantities than one gallon, without
The court instructed the jury that, if the defendant had a dramshop license, it was his duty to produce or prove it. This, the defendant claims, was error.
The instruction was proper, and announced the correct rule. State v. Edwards, 60 Mo. 490; Schmidt v. State, 14 Mo. 137; Wheat v. State, 6 Mo. 455. If the defendant had a license it was a matter peeuliarly within his knowledge, and, if ■ he relied on it as a defense, he should have produced it. The general rule is, that, when “ the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.” 1 Greenleaf on Evidence [14Ed.] sec. 79.
It appears from the record that the defendant, by motion, asked the court to consolidate this cause, for the purposes of trial, with several other actions of a similar nature against him, which he alleged were then pending in the circuit court of Butler county. The court overruled the motion, and the defendant excepted. This motion was not accompanied by proof of the facts therein alleged, and it is not possible for us to take judicial notice of the fact that there were other indictments against the defendant charging him with other like offenses. It was the duty of the defendant to support this motion by the necessary proof. In the absence of such evidence, we cannot review the action of the court in overruling the motion.
The judgment in this case is well sustained by the evidence, and we have found no error in the proceedings which would authorize its reversal. The other judges concurring, the judgment of the circuit court will be affirmed.
