State v. Oliphant

• Decision Date: 06 January 1908
• Citation: 128 Mo. App. 252,107 S.W. 32
• Parties: STATE v. OLIPHANT.
• Court: Missouri Court of Appeals

107 S.W. 32

128 Mo. App. 252

STATE v. OLIPHANT.

Kansas City Court of Appeals. Missouri.

January 6, 1908.

Rehearing Denied January 27, 1908.

1. INTOXICATING LIQUORS — LOCAL OPTION — NOTICE — PROOF OF PUBLICATION — RECORD — PRESUMPTIONS.

Since the statute regulating establishment of local option contains no provision for any form of proof to the county court of publication of the notices of the election and of the result thereof, it is not essential to the validity of the proceedings that the fact of publication should be entered of record, so that, where the county court record discloses that the notices were ordered to be published as prescribed, it will be presumed, in the absence of a contrary showing, in a prosecution for violating the local option law, that the notices were published as ordered; the burden being on defendant to show the contrary.

2. WITNESSES — IMPEACHMENT — CROSS-EXAMINATION OF ACCUSED — OTHER OFFENSES.

Rev. St. 1899, § 4680 [Ann. St. 1906, p. 2549], provides that any person who has been convicted of a criminal offense is nevertheless a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, on which he must answer any question relevant to the inquiry. Held, that where accused, in a prosecution for violating the local option law, offered himself as a witness in his own behalf, the state was entitled to cross-examine him with reference to other former convictions of illegal sales of liquor in another state, to impeach his credibility.

3. CRIMINAL LAW — APPEAL — PRESENTATION OF OBJECTIONS IN LOWER COURT.

An objection to the cross-examination of accused to show that he was conducting his business in his wife's name could not be reviewed on appeal, where no objection or exception was reserved thereto at the time.

4. WITNESSES — IMPEACHMENT — GENERAL MORAL CHARACTER.

Where accused offered himself as a witness in his own behalf, in a prosecution for violating the local option law, evidence that he had a reputation for selling liquor illicitly was admissible, as showing his general reputation, to impeach his credibility; such impeaching evidence not being restricted to reputation for truth and veracity.

5. CRIMINAL LAW — INSTRUCTIONS — WEIGHT OF EVIDENCE.

Under Rev. St. 1899, § 2639 [Ann. St. 1906, p. 1570], providing that the court shall not, on the trial of a criminal case, comment on the evidence or charge the jury as to matter of fact, unless requested to do so by the prosecuting attorney and defendant or his counsel, an instruction, in a prosecution for violating the local option law, that the testimony of a detective should be received with the "greatest caution and distrust" was properly refused, as invading the province of the jury.

Appeal from Circuit Court, Harrison County; P. C. Stepp, Judge.

George V. Oliphant was convicted of violating the local option law, and appeals. Affirmed.

J. C. Wilson and Barlow & Barlow, for appellant. W. H. Leazenby, for the State.

JOHNSON, J.

On information of the prosecuting attorney, defendant was tried and convicted in the circuit court of Harrison county on a charge of violating the local option law and was fined $800. He appealed to this court, and advances three grounds on which he relies for a reversal of the judgment: First, that the record shows the local option law was not legally adopted in Harrison county prior to the commission of the offense charged; second, that incompetent evidence prejudicial to defendant was admitted over his objection; and, third, that a cautionary instruction asked by defendant and refused by the court should have been given. Following the statement in the information that the local option law was adopted in Harrison county on the 17th day of January, 1900, it is alleged therein that on or about the 1st day of April, 1903, defendant unlawfully sold certain intoxicating liquors in said county. At the time stated defendant was operating a drug store, and it appears from the evidence offered by the state that he sold two glasses of whisky which were drunk by the purchasers behind the prescription case, and paid for by one of them. The witness who testified to making the purchase admitted on cross-examination that in a very short time afterward he was employed by the prosecuting attorney as a detective to obtain evidence of illegal sales of intoxicating liquors by druggists in that county, and for his services, which covered a period of 32 days, was paid $500 by the attorney, and, in addition, allowed and paid $35 for expenses. Further, he admitted that on three occasions, once in Harrison county and twice in Oklahoma, he was prosecuted for the offense of common assault, and in each instance entered a plea of guilty. He was the only witness who testified to the illegal sale. Defendant denied making the sale and testified that at the time it was alleged to have occurred he was in Osceola, Iowa, where formerly he had been in the drug business and where he still had some business interests. He was cross-examined, in part, as follows: "Q. You say you removed from Osceola down here? A. Yes, sir. Q. You were in business up there were you? A. Yes, sir. Q. You were found guilty of selling liquor up there were you not? (Objection.) Tell the jury now if you were not convicted for selling liquor illegally at Osceola, Iowa, in 1899? A. I answered that question once before. I said no. I plead guilty. Q. Oh, you plead guilty? A. Yes, sir. Q. How many times did you plead guilty, Mr. Oliphant? A. Twice. Q. You were in the drug business up there, were you? A. I was in the drug business a short time, about 10 months. Q. I will ask you if it is not a fact that the court enjoined you from further dealing in liquor of any kind whatsoever in the Third judicial circuit of the state of Iowa on account of the fact of your having been a violator of the liquor laws of that state? (Objection.) A. Yes, sir; that is true. Q. When did you say you moved down here? A. I came here in September. Q. What year? A. 1899. Q. When you came here the indictments were pending against you at Osceola? (Objection.) Q. You came here in September, 1899? A. Yes, sir. Q. You say you are in the drug business down here? A. I am working in a drug store. Q. Whose drug store? A. It is known as the Bethany Drug Company. Q. Who is the Bethany Drug Company? A. Nettie D. Oliphant was at that time and is. Q. And is now? A. Yes, sir. Q. And has been all the time? A. Yes, sir. Q. Who is Nettie D. Oliphant? A. She is my wife, I guess. Q. Your wife? A. Yes, sir. Q. Your wife owns the drug store? A. Yes, sir. Q. Did she own it at that time? A. Yes, sir. Q. And you are working for your wife? A. Yes, sir. Q. On wages? A. Yes, sir." In rebuttal, the state introduced five witnesses who testified that defendant's general reputation for morality was bad, but on cross-examination each witness admitted that this reputation rested solely on the belief generally entertained in the community that defendant was a persistent violator of the local option law. A fair example of the character of testimony elicited by the state is found in the following extracts from the cross-examination of one of the witnesses: "Q. Well, who did you hear talking about this man's reputation for morality, about him individually, his moral character? A. I want to confine it to his business. (Defendant objects.) By the Court: What do you mean by that? A. I mean that it was the business that he was doing that I was talking about. Q. The business he was doing? A. Yes, sir. By the Court: I suppose a man's moral character is made up from what he does — find out further. Q. You are not now making the statement that you have heard anybody say anything about his moral character? Simply it is the business he is in? Instead of his moral character? A. It is his drug store, yes, sir. It is the business he was doing — his drug store. By the Court: His character, you say, was made up from that? A. I said what I heard talked about his character was made up from that. Q. About his character? A. Yes, sir. * * * Q. Just simply because he was in the drug business? A. Yes, sir. By the Court: Was that it simply because he was a druggist? A. No; it was the whisky he sold. Q. That was it, suspected? A. Yes, sir. By the Court: Was it simply selling whisky? A. Well, that was the line of business that was talked about. By the Court: Under the law, a druggist may sell whisky. A. Well, illegally. Q. Did Dr. Caruthers say in that conversation he knew he was selling whisky illegally? A. No, sir. Q. Just suspected he was? A. Yes, sir. Q. Just a suspicion? A. Yes, sir. * * * Q. Did not pretend to know that they were selling liquor illegally? A. No; only just general talk. Q. A rumor? A. Yes, sir. Q. And from that you think his reputation for morality is bad? A. If he is selling liquor in the way they think he was. * * * Q. That is the only sort of talk you ever heard against Oliphant? A. Yes, sir; that was about it. Q. It was general talk against other druggists, as well as him? A. Against a couple of others. Q. Three in this town? A. Yes, sir. Q. Did you ever hear anything else talked about Oliphant, his moral character, except what you have stated here, in this line; about the suspicion of selling liquor? A. That is here at this time? Q. Yes. A. No: I don't think I ever did." Defendant moved to strike out the testimony of the witness, "for the reason he shows by his evidence that he had no knowledge of the general moral character of the defendant in this community; that his knowledge only grew out of the suspicion of individuals against his drug store against his selling liquor; that it is not founded on the facts or not claimed to be founded on any facts, and is therefore incompetent and immaterial." The court overruled the motion, and observed: "I have always understood that reputation was made up by what other people think of us, while character is...