State v. Hays

• Decision Date: 31 July 1865
• Citation: 36 Mo. 80
• Parties: STATE OF MISSOURI, Respondent, v. JAMES HAYS, Appellant.
• Court: Missouri Supreme Court

36 Mo. 80

STATE OF MISSOURI, Respondent,

v.JAMES HAYS, Appellant.

Supreme Court of Missouri.

July Term, 1865.

Appeal from Greene Circuit Court.

Wingate, for plaintiff.

This was an indictment under the 4th and 10th sections of the “Act to prevent the adulteration of spirituous liquors,” approved March 28, 1861. (Sess. Acts 1860-1, p. 92.) The indictment is founded on the 4th section, the penalty is provided under the 10th. The evidence tends to show the commission of the offense against which the 4th section is intended to guard.

I. It is contended that it was unnecessary to charge in the indictment that the defendant sold liquors to any particular person by name, or to prove any particular person by name. The indictment is good without such allegation. (People v. Adams, 17 Wend. 475. and cases cited.)

The refusal of the defendant's first instruction was proper. By the 27th sec., art. 4, Prac. Crim. Cas., (2 R. C. 1855, p. 1176,) it is provided, “that no indictment shall be deemed invalid, nor shall the trial or judgment be stayed, arrested or in any manner affected by reason of any surplusage, where there is sufficient matter alleged to indicate the crime and person charged,” &c. The name of the person to whom liquor was sold was surplusage, and the omission to prove it is therefore unimportant; but the giving of the instruction as asked would have made this surplusage a material allegation before the jury, and therefore it was correctly refused.

II. There was no error in refusing the second instruction; because it implied that the burden of proof was on the State to show that the defendant did not take the oath, and had not given the bond required by statute. No principle is better established in criminal as well as in civil law, that the burden of the proof of a negative is never imposed on the plaintiff when the defendant has it peculiarly in his power to prove the affirmative. The State had made a prima facie case by proving the sale of the liquor, and it was incumbent on defendant to show that he had taken the oath and given bond. In the absence of such proof, a conviction was proper.

III. The failure of the defendant to object or except to the giving of the instructions by the court, prevents this court from any examination of the same even if they were erroneous.

But it is insisted that the instructions given were proper and according to the act under which the indictment was found.

IV. The evidence clearly showed the defendant guilty of selling liquor in Greene county within a year preceding the finding of the indictment. Dealing out liquor behind the bar, and waiting on customers is “selling liquors,” in common parlance. So the witness meant; so the jury found.

James F. Hayden, for defendant.

I. The court erred in refusing the instructions asked by defendant. (Gardner v. The State, 14 Mo. 97.)

II. The court erred in giving the instructions asked by the State. (State v. Matthews, 20 Mo. 55; 30 Mo. 201.)

III. It is a settled doctrine that the testimony in a criminal offence must prove the offence as charged, or some less grade of the same character of offence, such as the law would authorize the jury to find defendant guilty of under the indictment.

HOLMES, Judge, delivered the opinion of the court.

The defendant was indicted at the July term, 1864, of the Circuit Court of the county of Greene for unlawfully selling spirituous liquors to one John McElhaney without having taken the oath and filed the bond required by the act of March 28, 1861, (Sess. Acts of 1860-61, p. 92,) and pleaded not guilty.

The only evidence offered on the trial was the testimony of John McElhaney, to the effect that he was acquainted with the defendant and had drunk frequently at the grocery called “Hays & Gorman's,” but that he never bought any liquor of Hays in his life, though he had once seen him behind the counter waiting on customers.

The instructions which were given for the plaintiff proceeded on the idea that the naming of John McElhaney might be rejected as surplusage, there being no evidence of any sale to him, and that a verdict might be found against the defendant on the evidence tending to show a selling to other persons.

Two instructions were asked for by the defendant which the court refused, the defendant excepting to the effect that unless the jury believed from the evidence that the defendant, within one year before the finding of the indictment, sold spirituous liquors to John McElhaney without having filed the oath and given the bond required by the statute as charged in the indictment, they would find for ...