State v. Hughes

• Decision Date: 31 October 1856
• Citation: 24 Mo. 147
• Parties: THE STATE, Respondent, v. HUGHES, Appellant.
• Court: Missouri Supreme Court

24 Mo. 147

THE STATE, Respondent,

v.HUGHES, Appellant.

Supreme Court of Missouri.

October Term, 1856.

1. It is a matter within the discretion of the lower courts to permit leading questions to be put to witnesses.

2. A license to sell liquor at a place named in a specified block in the city of St. Louis, will not authorize a sale in another block in said city.

3. A license to sell spirituous liquors cannot justify a sale made prior to its date.

Appeal from St. Louis Criminal Court.

Bland & Coleman, for appellant.

Voullaire (assistant circuit attorney), for respondent.

RYLAND, Judge, delivered the opinion of the court.

This case comes into this court upon appeal from the Criminal Court of St. Louis county, where the appellant was convicted upon an indictment filed in said court on the 25th of September, 1855, charging the appellant, in the usual form, with selling intoxicating liquors in St. Louis county, on the 1st of January, 1855, without license, by the glass, to Daniel Worthington, and others to the grand jury unknown. The questions arising upon this appeal grow out of the action of the court below upon the trial of the cause.

The cause was tried in the court below on the 23d November, 1855; the appellant was convicted and fined $75. The respondent called as a witness upon the trial of the cause Daniel Worthington, who testified that he had never been in appellant's place of business, but gave evidence tending to show the drinking of whisky and brandy at the appellant's place of business in the months of August and September, 1855. The witness not being able to speak with certainty as to the character of the liquor drank, the circuit attorney asked him the following question: “Have you seen liquor sold there that you are satisfied was not soda?” This question was objected to by defendant's counsel as leading, and also that it did not call for any fact, but only the conclusion of the witness' own mind from what he had seen; and that the witness should only be allowed to give facts in evidence to the jury, and not his own convictions or conclusions. The objection was overruled by the court, and the counsel for the defendant excepted, and the witness answered: “I have. I saw liquor drank there that was not turned out of soda bottles.” On the cross-examination the witness testified that he was not willing to swear to the drinking or sale of any whisky or brandy. No other evidence was offered on the part of respondent to show a sale, although a witness was introduced who proved a drinking at the appellant's place of business.

The appellant offered in evidence a certificate of license issued to him by the County Court of St. Louis county, as follows: “State of Missouri, county of St. Louis, ss. To all to whom these presents shall come, greeting: Know ye, that Wm. M. Hughes having obtained from the County Court of St. Louis county an order for a license to keep a dram-shop at his stand in block No. 15 of the city of St. Louis, for six months from the 19th day of April, 1855, and having paid to the collector the state and county tax thereon, these are, therefore, to license said Hughes to sell fermented drinks, wines of all kinds, and spirituous liquors, in any quantity less than ten gallons, at the place aforesaid, for said period of six months. In testimony whereof, I hereto set my hand and affix the seal of said court the 23d day of April, 1855. (Seal.) This license not transferable. J. Thornburgh, clerk.” Which the court refused to allow in evidence until the defendant first proved that the place of sale or of business was block No. 15 of the city of St. Louis, and refused to allow the same to be read in evidence to the jury until after such preliminary evidence was given. The defendant admitted that the sale of liquor for which he was being tried took place in a grocery kept by him in block 179, and not in block 15, and for this ground the state objected to the reading of the license in evidence, and the court sustained the objection, and defendant excepted; which admission was made by defendant after the court had decided that defendant must first prove he sold in block No. 15, to which ruling, decision and refusal the counsel for defendant then and there on his behalf excepted.

The appellant then offered in evidence another certificate of a license issued to him by the County Court of St. Louis county, of which the following is a copy: “State of Missouri, County of St. Louis, ss. To all to whom these presents shall come, greeting: Know ye, that Wm. M. Hughes having obtained from the County Court of St. Louis an order for a license to keep a dram-shop at his stand in block 179 of the city of St. Louis, for six months, from the 23d day of ...