State v. Eckstein

• Decision Date: 01 May 1928
• Docket Number: No. 20329.,20329.
• Citation: 5 S.W.2d 647
• Parties: STATE v. ECKSTEIN.
• Court: Missouri Court of Appeals

5 S.W.2d 647

STATE v. ECKSTEIN.

No. 20329.

St. Louis Court of Appeals. Missouri.

May 1, 1928.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Louis Eckstein was convicted of the unlawful possession of liquor, and he appeals. Reversed and remanded for new trial.

Creech & Penn, of Troy, for appellant.

Jos. R. Palmer, Pros. Atty., of Elsberry, for the State.

BECKER, J.

Defendant was indicted in Lincoln county, Mo., charging him with having in his possession "about one-half pint of whisky," on an unnamed day in October, 1925. On a trial before a jury the defendant was convicted and in due course brings this appeal.

Defendant was a tenant occupying a farm owned by one Theodore Forman, located in the vicinity of Troy. Said Forman was the sole witness for the state, and according to his testimony on the 1st day of October, 1925, he and defendant were hauling wood on the farm, and as they were loading some heavy pieces of wood, the defendant suggested that some good liquor might aid them in lifting some of the heavy pieces; that the defendant thereupon walked down a ravine on the farm and got a half pint bottle of liquor out of a brush pile, and that he and the defendant each took a drink out of the bottle.

The defendant, on direct examination, was asked whether he ever had any intoxicating liquor in his possession on the Forman farm, and whether in the month of October, or at any other time, he had given Mr. Forman a drink of liquor out of a bottle, to each of which questions he answered, "No."

On cross-examination the court, over the objection of defendant, permitted the state to make inquiry with reference to another occasion when allegedly defendant had shown two half pints of whisky to Forman on the farm. Upon the defendant's denial thereof the following questions were asked him on behalf of the state:

"Well, didn't you, at the same time when you had this liquor, tell Forman about who your customers were?" "I will ask you what, if any conversation, you had with Mr. Forman, or Mr. Forman with you, about you handling whisky or intoxicating liquor on his farm?"

Though objection was raised to these questions, that it was cross-examination on a matter not within the scope of the examination in chief, and immaterial to the case, such objections were overruled and the witness required to answer.

After the close of the defendant's case, the state was permitted to place Forman back on the stand in rebuttal, and over the objection of defendant was permitted to testify that between the 10th and 15th of September, 1925, the defendant brought two half pints of whisky from the henhouse and one half pint bottle, about half full, from the house, which he took to the barn. Following this, over the objection of the defendant, Forman was asked:

"Did he, at the same time in your presence, tell you that he had sold more liquor during the Lincoln County Fair than the biggest bootlegger in Troy because his stuff was better than his?"

To which the witness answered:

"He did; that was subsequent to the day I saw him with these two half pints and the pint bottle." "Subsequently, not on the same day?"

The record discloses that thereupon the prosecuting attorney stated:

"I desire, then, if the court please, to withdraw that and ask that the answer be stricken out. I was under the wrong impression."

Counsel for...