State v. Thurman
| Decision Date | 22 December 1906 |
| Parties | STATE OF MISSOURI, Respondent, v. THURMAN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Ripley Circuit Court.--Hon. J. C. Sheppard, Judge.
AFFIRMED.
Judgment affirmed.
Alfred Perkins for appellant.
It is urgently insisted by counsel for appellant that this cause should be reversed for the following reasons: First. Because the newly-discovered evidence, as shown by the affidavits of W. J. Dodd, Omer McKee, W. P. Odom and J. D. Thurman, the appellant herein, filed with a motion for a new trial, were not merely cumulative or for the purposes of impeachment, but were directly touching the merits of the case, and if such evidence had been introduced in the course of the trial it would very likely have tended to have resulted in the acquittal of the defendant. Investment Co. v. Hoyt, 164 Mo. 140; State v. Murray, 91 Mo. 95; State v. Bailey, 94 Mo. 311; Howland v. Reeves, 25 Mo.App. 464. Second. Because the prosecuting attorney in his closing argument before the jury used language that would tend to close the eyes of the jury as to the evidence introduced by the appellant, over the objections of appellant's counsel and after he had been warned by the court. State v. Young, 99 Mo. 666; State v Jackson, 95 Mo. 623; State v. Elmer, 115 Mo. 401.
Thomas F. Lane, Prosecuting Attorney, and J. F. Fulbright for respondent.
It has been held in this State that evidence merely cumulative or for the purpose of impeachment is insufficient to authorize a new trial. State v. Nettles, 153 Mo. 464; State v. Miller, 144 Mo. 26. It has long been held in this State that improper remarks of counsel not made the subject of an exception will not be considered on an appeal. State v. Hicks, 92 Mo. 431; State v. West, 95 Mo. 139; State v. Helsabeck, 132 Mo. 348; State v. Lamb, 141 Mo. 298. Objectionable remarks of counsel to the jury should be excepted to at the time and an instruction to disregard them asked in order to require a review or an appeal. State v. Dusenberry, 112 Mo 227; State v. Green, 117 Mo. 298; State v. Edie, 147 Mo. 535.
Goode, J., not sitting.
--On a trial before the jury in the circuit court, the defendant was convicted of selling intoxicating liquor in less quantity than three gallons without a license as a dramshop keeper. There is substantial evidence to support the verdict. The prosecuting witness gave testimony tending to show that in the month of March or April, 1905, he visited the defendant's establishment in the city of Doniphan and expressed a desire to purchase a gallon of whiskey; that the defendant told him he could not sell him the whiskey but may-be he could fix it so that he could get it; that witness went out, procured a jug and returned; that the defendant thereupon filled the jug with a gallon of whiskey, for which witness placed three dollars, the price, on a barrel, and departed with the jug and contents; that it was in the month of March or April, the day was cold and a sleet storm was then prevailing; that defendant's establishment at the time was down "this side of the depot."
1. The instructions given by the court covered the issues fully, gave defendant the benefit of a reasonable doubt and submitted the case fairly to the jury. The defendant does not complain of the instructions as given, but he does complain that the court erred in failing to instruct the jury on the credibility of the witnesses. Now, there can be no possible merit in this assignment of error on the record before us, in view of the fact that the defendant did not request the court to so instruct. The defendant asked no instruction on the credibility of the witnesses nor otherwise, for that matter, and the record therefore presents a mere case of non-direction, which is not reversible error. Indeed, the matter of giving and refusing instructions on credibility, when requested in cases of this nature, is so largely vested in the sound discretion of the trial court that their refusal will only be condemned as error when it is manifest that the court, in refusing the request, abused such discretion. [Beasley v. Jefferson Bank, 114 Mo.App. 406, 89 S.W. 1040.]
2. The prosecuting attorney made certain alleged improper remarks in his argument to the jury to which the defendant's counsel interposed objections at the time. The court did not reprimand the prosecuting attorney, but did caution him to confine his remarks to the record. Notwithstanding the court's caution, the prosecuting attorney continued insisting upon the same line of argument. There was no further objection made thereto by defendant's counsel nor was an exception saved at the time to the action of the court in failing to administer a reprimand. In this State of the record, this court will decline to review the matter as error assigned. The defendant, by failing to preserve his exceptions thereto at the time, will be regarded as having waived his objections in that behalf and the rule is the same with respect to such matters of exception in both criminal and civil cases. [State v. West, 95 Mo. 139, 8 S.W. 354; State v. Hicks, 92 Mo. 431, 4 S.W. 742; State v. Hilsabeck, 132 Mo. 348, 34 S.W. 38; State v. Lamb, 141 Mo. 298, 42 S.W. 827.]
3. The defendant complains that the court erred in overruling his motion for a new trial on the grounds of newly discovered evidence, etc. The rule with respect to motions for new trial on the ground of newly-discovered evidence is that "it devolves upon the defendant to show; first, that the evidence came to his knowledge since the trial; second, that it was not owing to want of due diligence that it did not...
To continue reading
Request your trial