State v. Clinkenbeard
| Decision Date | 15 April 1916 |
| Docket Number | No. 1700.,1700. |
| Citation | 185 S.W. 553 |
| Parties | STATE v. CLINKENBEARD. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.
Joe Clinkenbeard was convicted of selling whisky in violation of the local option law, and he appeals. Affirmed.
Howard Gray, of Carthage, and John B. Cole and E. M. Connor, both of Joplin, for appellant. H. W. Timmonds, of Lamar, for the State.
Defendant was convicted of selling whisky in violation of the local option law which was at the time in force in Lamar, Barton county, Mo. The state proved by J. M. Houston that on June 27, 1915, he went into defendant's drug store in Lamar, it being Sunday morning, and bought a pint of whisky, paying 75 cents for it, that he was required to sign a piece of paper on which nothing was written, and that he drank some of it there. Defendant undertook to justify the sale on the ground that he had a prescription, which he admits was written by himself for Mrs. Houston, as he says, and which was signed "R. J. Fletcher, M. D." Just over Fletcher's name appears J. M. Houston's name, after which is the word "Purchaser," and just over Houston's name is written the following:
The only material difference between the testimony of the defendant and that of the state's witness was that Houston declares nothing was written on the paper he signed, whereas defendant says that he (the defendant) wrote out the prescription, excepting the name of J. M. Houston appearing thereon and the name of R. J. Fletcher, M. D. Defendant testifies that he would not sell Houston the whisky unless Dr. R. J. Fletcher, a physician, would prescribe it. Quoting from his testimony:
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Defendant offered no testimony as to his character or reputation. He admitted that he had been convicted of violations of the local option law, and that to at least one such charge he had pleaded guilty. The state in rebuttal offered evidence to the effect that the reputation of defendant in that community for selling intoxicating liquor in violation of the local option law was bad. The record shows that the alleged prescription was not offered in evidence until after both sides had rested and the instructions were being prepared, when the defendant asked that he be permitted to introduce the prescription. The court substained an objection to it being introduced for these reasons: Because it should have been introduced in evidence before the state closed in rebuttal, that the physician might be called and the circumstances of issuing the prescription gone into; that the prescription is not for liquor to the witness who procured it at all — it purports to be a prescription for Mrs. Houston — nothing is here to show that Mrs. Houston, directly, or indirectly ever procured any prescription, or that any examination was ever made of her, or that the physician ever knew anything about her; that the defendant testified that he wrote the prescription and asked the physician to sign it, "and that that would show on the face of the prescription that it was fraudulent and in violation of the law"; and that it is not shown that the prescription offered was signed by a regularly registered and practicing physician. The errors assigned go to the conduct of the trial judge, the rejection of evidence offered by the defendant, the remarks made in the argument by the prosecuting attorney, and the failure of the court to fully instruct on the law.
Counsel for appellant complain much in their briefs concerning the attitude, rulings, and remarks made by the trial judge during the course of the trial. After reading the record carefully, we fail to find a substantial basis for such complaint. Special attention is called by counsel to the remarks made by the...
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The State v. Feeler
...order the withdrawal of the remark from the consideration of the jury or reprimand counsel. [State v. Carryer, 180 S.W. 850; State v. Clinkenbeard, 185 S.W. 553; State v. Webb, 254 Mo. 414, 162 S.W. 622.] It only where the improper remarks are such that if excluded they will not cure the in......
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State v. Brokaw
... ... State v. Matheis, 49 Mo. App. 237; State v. O'Connor, 65 Mo. App. 324; State v. Clinkenbeard (Mo. App.) 185 S. W. 553. Also failure of defendant to request an instruction on this phase of the case and to save exceptions for failure to instruct, prevents him from complaining on appeal. State v. Tucker, 133 S. W. 27, 232 Mo. 1; State v. Gaultney, 146 S. W. 1153, 242 Mo. 388. Defendant ... ...
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State v. Feeler
...the withdrawal of the remark from the consideration of the jury or reprimand counsel. State v. Carryer, 180 S. W. 850; State v. Clinkenbeard (App.) 185 S. W. 553; State v. Webb, 254 Mo. loc. cit. 434, 162 S. W. 622. It is only where the improper remarks are such that, if excluded, they will......
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State v. Stearman
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