State v. Small

• Decision Date: 31 October 1860
• Citation: 31 Mo. 197
• Parties: THE STATE, Respondent, v. SMALL, Appellant.
• Court: Missouri Supreme Court

31 Mo. 197

THE STATE, Respondent,

v.SMALL, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. Each sale of intoxicating liquor without a license constitutes a distinct and separate offence against the State; different and distinct offences may be committed by selling to the same persons at different times.

2. Time is not material in the statement of the offence; a sale on one day may be alleged and the proof may be of a sale on another.

3. To sustain a plea of former conviction, the burden of proof is devolved upon the defendant to show that the offence charged is the same of which he was formerly convicted; it would not be sufficient to show that the testimony adduced was the same as that introduced on the former trial, where such testimony showed several distinct and separate offences.

Appeal from Scotland Circuit Court.

The facts sufficiently appear in the opinion of the court.

Cowgill & Bush, for appellant.

I. The instructions given upon the part of the plaintiff were illegal, because the evidence shows that the defendant was indicted and convicted for selling upon the 4th and 7th days of October, 1858, upon the same evidence as given in this cause. The instructions asked for by the defendant and refused by the court ought to have been given, because the evidence shows that the witness had testified upon the trial of the two first indictments to various sales made on the 4th and 7th, to various persons, without naming all that purchased; and it was impossible for the jury in this case to know for which of such sales the former juries had found the defendant guilty.

SCOTT, Judge, delivered the opinion of the court.

This was an indictment for selling intoxicating liquors without license. The defendant was indicted, by the same grand jury which found the present indictment, for two similar offences in two separate indictments. In the case now before us, the offence is alleged to have been committed on the 5th of October, 1858. There are two counts in the indictment, as there were in the other indictments, in which the offences are charged to have been committed-- the one on the 4th, and the other on the 7th of October, 1858. To the indictment the defendant pleaded a former conviction, and gave the judgments against him on the two former indictments in evidence in support of his plea. There was but one witness, who testified in the cause, produced by the State. He said he saw the defendant sell liquor, at the fall term of that court in 1858, in quantities less than a quart, to one R. Reed, and that he testified before the grand jury on said day, once in the forenoon and once in the afternoon on the day Reed bought the liquor. Saw some half a dozen or more persons drink and pay, each for himself, for liquors in less quantities than a gallon, at the time Reed and witness drank; that witness had been called and testified in two cases between the same parties and for the same character of offence, and had testified to the same facts before the jury, who tried the other two cases, as he had testified to the present jury, and that he was the only witness against ...