State v. Andrews
| Decision Date | 31 July 1858 |
| Citation | 27 Mo. 267 |
| Parties | THE STATE, Defendant in Error, v. ANDREWS, Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. Each act of selling liquor without license is a distinct offense, for which the party so doing may be prosecuted by a separate indictment, or by different counts in the same indictment; when the defendant pleads that the offense charged against him is the same of which he had been previously convicted, the onus is on him to sustain his plea; it is not sufficient for him to show that the evidence adduced against him would have supported the first indictment, because it would have been sustained by proof of any act of selling within twelve months before the finding thereof.
2. In all cases in which a person arraigned upon an indictment does not confess the indictment to be true, a plea of not guilty should be entered, and the same proceedings should be had as if he had formally pleaded not guilty to the indictment. (R. C. 1855, p. 1181, §5.)
Error to Chariton Circuit Court.
This was an indictment for selling liquor without license. The defendant pleaded a former conviction for the same offense. The cause was tried by the court without a jury. The court found the defendant guilty as charged. The court refused certain declarations of law, the erroneous character of which is apparent from the opinion of the court.
Prewitt, for plaintiff in error, cited Greenl. Ev. §36; State v. McGrath, 19 Mo. 678; Brown v. King, 10 Mo. 57; R. C. 1855, p. 1181; 11 Mo. 363; State v. Vaughn, 26 Mo. 29; State v. McGee, 8 Mo. 495.)
Ewing (attorney-general), for the State.
I. The sales of liquor were distinct. Each sale was a distinct offense. (R. C. 1855, p. 683, 686; 11 Vermont, 91; 1 Archbold, 113-4.)
We think that the instructions asked by defendant were properly refused, because they all assume, as a matter of law, that the misdemeanor for which the defendant was on trial was the same offense for which he had previously been indicted and convicted. Each act of selling is a distinct offense, for which the defendant may be prosecuted by a separate indictment, or by different counts in the same indictment; and when it is pleaded that the offense charged in both indictments is the same, the averment may be established by parol evidence, and it is to be proved by the defendant. To sustain the plea in this case, it was incumbent on the defendant not only to produce the record of the former conviction, but to...
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Parshall v. State
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...to be true," a plea of not guilty is entered for him and a trial is had. [R. S. 1909, section 5165; Thomas v. State, 6 Mo. 457; State v. Andrews, 27 Mo. 267; State Kring, 74 Mo. 612.] Everyone knows that in the modern criminal practice, unless the defendant raises some preliminary question ......