State v. Upton

• Decision Date: 14 April 1908
• Citation: 130 Mo. App. 316,109 S.W. 821
• Parties: STATE v. UPTON.
• Court: Missouri Court of Appeals

109 S.W. 821

130 Mo. App. 316

STATE v. UPTON.

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. CRIMINAL LAW — TRIAL — ARGUMENTS OF PROSECUTING ATTORNEY.

Where, on a trial for selling liquor on Sunday, accused testified that he had prior to the offense sold his dramshop to a third person, but he did not produce the third person to corroborate his testimony, though there was nothing to show that the third person had left the country, the argument of the prosecuting attorney that he could only prosecute the third person for selling liquor without a license, and that the third person had "skipped from" the country to shield accused, followed by his statement in reply to objections by counsel for accused that, when you throw a stick among a pack of dogs, and one is hit, he always yelps, was reversible error.

2. SAME.

It is error for the prosecuting attorney in his address to the jury to comment on facts not in evidence, or to use language calculated to excite the prejudice or inflame the passions of the jury.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Newton Upton was convicted of selling liquor on Sunday, and appeals. Reversed and remanded.

At the January, 1906, term of the Cape Girardeau circuit court defendant was tried by a jury, and convicted of a violation of section 3011 of the dramshop act. The state offered in evidence defendant's dramshop license, which showed it was granted him on November 19, 1905, and permitted him to keep a dramshop in the city of Cape Girardeau for a period of six months. The information charged, and the state's evidence tended to show, that defendant's dramshop or a dramshop known as his, was kept open on the 19th day of November, 1905, being the first day of the week, commonly called Sunday, and that both beer and whisky were then and there sold to divers persons by the bartender in charge. Defendant testified in his own behalf that on October 29, 1906, he sold his dramshop to McLain and Stafford for $900 cash, and on the payment of the cash to him he delivered possession of the saloon to the purchasers, and has had no connection with the saloon or control over it since the sale, which he testified was made in good faith. On cross-examination defendant testified that after his arrest on the information he, in company with McLain, at the latter's request, called at the office of the prosecuting attorney with the view of fixing the matter up. In answer to a question witness said: "I asked you if you would settle. I told you I wanted to go away. I had things arranged to go to Indian Territory to see about land I bought. Didn't I tell you I wanted to go away and couldn't this be put off some way until I could get back, and you said you couldn't put it off? Isn't that a fact? Q. I am not on the stand. A. This is what I told you. Q. I will ask you, Mr. Upton, if you didn't try to continue it so you could save the license? A. You said that was the only show. You told me that was the only show you could do was to have the case continued to save the license; that is all you would do. Q. That I would refuse to let the license stand? A. Yes, sir; unless we could get a continuance. * * * Q. You were talking. You admitted to me this was your saloon? A. Yes, sir; I didn't tell you it was my saloon. Q. Don't you know that this sale is fraudulent, and that this sale is made to prevent this license from being revoked? A. I do not know. I was there when the sale was made. Q. Don't you know this was made in order to evade the law, this sale? A. No, sir; it was not. * * * Q. You know that Stafford and McLain have no license, don't you? A. I sold out to them; turned the goods over to them. Q. Don't you know that you can't sell a dramshop license? A. I don't think I sold them the license. I sold them everything and stepped out. Q. In other words, a sale was made to squirm out of? A. No, sir. * * * Q. Then you want this jury to understand, Mr. Upton, that you had no interest in that saloon on the 19th day of November or at the time Mr. Sutton says, some few weeks before, they bought liquor there? You sold out on the 29th of October? A. Yes, sir. Q. What prompted you to come to my office that night? A. I came with Mr. McLain. Q. You seemed to be interested. A. No, sir; I wasn't doing anything. I had...