State v. Jackson

• Decision Date: 02 April 1917
• Docket Number: No. 12341.,12341.
• Citation: 194 S.W. 1078
• Parties: STATE v. JACKSON.
• Court: Missouri Court of Appeals

194 S.W. 1078

STATE v. JACKSON.

No. 12341.

Kansas City Court of Appeals. Missouri.

April 2, 1917.

Rehearing Denied April 30, 1917.

Appeal from Circuit Court, Adair County; C. D. Stewart, Judge.

"Not to be officially published."

John Jackson was convicted of selling intoxicating liquor, and appeals. Affirmed.

Weatherby & Frank and J. E. Rieger, all of Kirksville, for appellant. Mills & Mills, of Kirksville, for the State.

ELLISON, P. J.

Defendant was charged with selling intoxicating liquor to one Kirksey in violation of the local option statute in force in Adair county. He was convicted, and thereupon perfected his appeal.

Complaint is made that evidence was heard over defendant's objection tending to show sales to other persons. The objection to this evidence was not made until after the witness had answered. The answer of the witness was responsive to the question asked him, and it does not appear that he answered before objection could be made. No motion to strike out was offered. It is not proper practice to await the answer of a witness and then, if it is unfavorable, to object.

Error is assigned on the ground that the prosecuting witness was not required to produce a memorandum he wrote down at the time of the sale to which he testified, and State v. Nardini, 186 S. W. 557, is cited in support of this assignment. The instances are not alike. In the Nardini Case, the witness had the entire memoranda in his pocket and only produced a part of it; while, in this case, the witness did not have the memorandum, having lost it several months before the trial. But it is claimed that the state's counsel had a copy of it. If that were true, the well-recognized steps requiring him to produce it should have been followed.

Several objections were made to the action of the court in refusing to permit defendant to cross-examine the state's prosecuting witness as to contradictory statements. Many of these were trivial and were well refused. In our opinion every proper privilege was extended in the cross-examination to put before the jury all facts tending to test the memory, the veracity, and the interest of the witness.

Objection is made to the remarks of counsel for the state during the hearing of evidence and in argument. The court sustained objections to all such as were improper, and no exceptions were saved to a failure to reprimand. State v. Wana, 245 Mo. 558, 562, 150 S. W. 1065; State v. Raftery, 252 Mo. 72, 83, 158 S. W. 585. See, also, ...