State v. Buckner

• Decision Date: 25 January 1886
• Citation: 20 Mo.App. 420
• Parties: STATE OF MISSOURI, Respondent, v. R. M. BUCKNER, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 420

STATE OF MISSOURI, Respondent, v. R. M. BUCKNER, Appellant.

Court of Appeals of Missouri, Kansas City.

January 25, 1886

APPEAL from Polk Circuit Court, HON. BEN. V. ALTON, Judge.

Reversed and remanded.

The case is stated in the opinion.

EMERSON & UNDERWOOD, and F. P. WRIGHT, for the appellant.

I. There was no evidence whatever that the offence was committed in Polk county and judgment should have been arrested. State v. Babb, 76 Mo. 501; State v Burgess, 75 Mo. 245; State v. Britton, 80 Mo 60.

II. The indictment is bad. It charges defendant with selling liquors as a druggist, without a dramshop license, and without a prescription by a physician, neither of which was necessary. The indictment, failing to charge that the liquor was sold as a beverage, or not as a medicine, is clearly bad. State v. McAdoo, 80 Mo. 216; Laws 1881, p. 130; Revised Statutes, 1879.

III. The court erred in permitting persons, whose names were not indorsed on the indictment, to testify, without introducing at least some of the witnesses whose names were so indorsed. The statute (section 1802, Revised Statutes) contemplates this. The court also erred in refusing to permit defendant to testify whether he had knowledge that it would be used as a beverage, or as a medicine.

IV. The court erred in the instructions given for the state. The first was calculated to mislead the jury. There was no evidence to sustain the second. The third was a comment on the evidence. And as to the fourth there was no evidence whatever that the offence was committed in Polk county. Besides, they are in conflict with those given by the court of its own motion. Goetz v. Han. & St. Jo. R. R., 50 Mo. 472.

V. The court erred in refusing to give defendant's second, third, sixth, and seventh instructions.

ELLISON J.

The defendant was indicted as a druggist and dealer in drugs and medicines, for selling intoxicating liquors in less quantities than one gallon, without having a dramshop keeper's license, and without being prescribed by a regularly registered physician. The indictment was found on April 29, 1882, and charges the sale to have been made on March 30, 1882.

The trial below resulted in a conviction of defendant and he appeals. The judgment will have to be reversed for the reason that there is no proof of the venue. There is nothing in the evidence preserved showing the act charged was committed in Polk county.

At the time the offence is alleged to have been committed, the act of ...