State v. Turner

• Decision Date: 14 May 1907
• Citation: 125 Mo. App. 21,102 S.W. 599
• Parties: STATE v. TURNER.
• Court: Missouri Court of Appeals

102 S.W. 599

125 Mo. A. 21

STATE v. TURNER.

St. Louis Court of Appeals. Missouri.

May 14, 1907.

1. INTOXICATING LIQUORS — CRIMINAL PROSECUTIONS — QUESTIONS FOR THE JURY.

In a prosecution for selling whisky without a license, held that, under the evidence, the question whether the sale was of three gallons or of half a gallon was for the jury.

2. CRIMINAL LAW — CONDUCT OF TRIAL — REMARKS OF JUDGE.

In a prosecution for selling whisky without a license, where the question at issue was whether the sale was a legal sale of three gallons or an illegal sale of the half gallon which the purchaser took away with him, the remark of the trial judge in the presence of the jury that he was inclined to think it was a sale of what he got was prejudicial error.

Appeal from Circuit Court, Barry County; F. C. Johnson, Judge.

Bill Turner was convicted of selling whisky without a license, and appeals. Reversed and remanded.

Jos. French and Davis & Steels, for appellant. D. H. Kemp, for the State.

GOODE, J.

This defendant was convicted of selling a half gallon of whisky without having a license as a dramshop keeper. The defense was that he was a distiller of whisky, and sold not a half gallon, but three gallons at the distillery where it was made, and therefore was within the protection of section 3014 of the Revised Statutes of 1899 [Ann. St. 1906, p. 1727], allowing intoxicating liquors to be sold in quantities of not less than one gallon at the place where made. See State v. Heard, 64 Mo. App. 334. But one witness was introduced, the man who purchased the whisky. He testified he went to defendant's distillery and told defendant he wanted to buy three gallons of whisky, but could only take away a half gallon at a time. He purchased three gallons for $7.50 and on his first visit took away a half gallon, paying $1.35 to defendant, which was all the money he had; that on two other visits to the distillery he got the rest of the whisky, making two further payments in proportion to the quantity he took each visit. The witness swore that he noticed on the occasion of the first visit, when the sale was made, that the defendant measured out the three gallons ordered, and it was left in the building to be obtained by the witness whenever he called for it. If the agreement was in good faith as related, and three gallons of whisky were actually drawn from the barrel and set apart in a separate vessel, to be obtained by the purchaser as wanted, the transaction...