The defendant appeals from a judgment against him on an indictment containing but a single count and which charged that he, the defendant, on, etc., at, etc., “did unlawfully sell intoxicating liquors in less quantities than three gallons, to wit: One pint of whisky, one pint of brandy, one pint of gin, one pint of wine, and one pint of lager beer, without taking out or having a license as a dramshop keeper, or any other legal authority to sell the same, against the peace and dignity of the state.”
Cs¡nífg iiqSor: .sIlti-aiLiL At the trial the state gave evidence to the jury tending to show that the defendant within one year next before the finding of the indictment at the county of Platte, sold beer, whisky, and wine by the drink and by the bottle to various persons at various times. To
In State v. Heinze, 45 Mo. App. 403, it was distinctly ruled, upon the authority of the various decisions of the supreme court of this state therein referred to, that in misdemeanors, whether several offenses are charged in one count or in several counts of an indictment or information, that it is a proper practice to receive evidence of such several offenses so charged and that the prosecutor can not be required to elect on which charge he will proceed. In that case the information contained but one count wherein the charge was precisely the same as that in the present indictment, and it was further said by us in the course of the opinion that: “Under the charge in the information the prosecution was authorized to prove a sale of all or any of the intoxicants therein described, on any day within the term prescribed by the statute of limitations, and that within such period it was proper for the prosecution to prove by a witness an offense under the information on one day and by another witness another offense thereunder on a different day, though both days were different from those charged.” The rulings thus made afford a complete answer to the objection of the defendant just stated.
The defendant suggests that there are three other indictments pending in the circuit court wherein the charge is identical with that in the present case, and then asks which one of the several sales alleged in the latter indictment, and in support of which the evidence objected to was received at the trial, can be pleaded in bar in the trial of either of said of the three indictments! This question may be best answered by refer
In State v. Small, 31 Mo. 197, it is said: “Each drink sold to the same or to different persons is a separate and distinct offense against the statute prohibiting the sale of intoxicating liquors. If the witness is to be believed, besides the sale to Reed he saw six or more persons buy and drink liquor at the defendant’s house whilst he was drinking with Reed. The defendant then had offended at least seven times against the statute, and because he had been punished for two of these offenses he would go excused for the rest. The burden of proving his plea was on the defendant. He could have satisfied the jury that he had been tried for the identical offense for which he was then r-a trial. His inability to do this was his own fault. It lay in his having offended so often that he could not identify and prove each offense. * * * A dramshop keeper may sell on the same day to the same person four drinks at intervals and because two of these offenses are proved by one witness, can not the same witness prove the other two? And if his testimony at each trial be the same will it follow therefore that the offenses are identical? It was for the court or jury to know that the offenses for which defendant was tried were the same for which he had already been convicted, if he would maintain his plea he must prove they were the same.”
In State v. Andrews, 27 Mo. 267, it was said that: “When it is pleaded that the offense charged in both indictments is the same, the averment may be established by parol evidence, and is to be proved by defendant. To sustain the plea in this case it was incumbent on the defendant not only to produce the record of the former conviction, but to show by testimony that he had been previously tried for identically the
Kirkwood v. Antenrieth, 21 Mo. App. 73, was one of fourteen different prosecutions for selling liquor without a town license. In several of these the town was successful. The court said that: “Conceding, therefore, that under the testimony the jury were bound to find that the defendant had violated the ordinance in question in some instances, as he unquestionably did, how can we say that they were further bound to find that he violated it on a particular day, the day being the only distinguishing feature of this particular offense.”
State v. Wilson, 39 Mo. App. 184, was where the indictment charged that the sale of intoxicating liquor was made on November 5, 1888. At the trial the witnesses were permitted to testify to sales made at any time within a year next before the date of the finding of the indictment. It appeared that these witnesses had testified on former trials of the defendant for similar offenses. Their testimony at each trial was substantially the same. They did not testify to sales made on any specific day, and they did not testify that any sale was made to them or either of them on the day laid in the indictment.”
The defendant gave in evidence three other indictments for similar offenses committed October 10, October 30, and November 6, 1888, and the record entries showing that he had been convicted on two and acquitted on the third. It was said by the court that:
Nfie^Ts: former procedure.' The result of the foregoing cases is that in order to sustain the plea of former conviction for an offense for which a defendant is put upon his trial under a second indictment, there must be something in the testimony to lay the date or fix the circumstances or incidents of any particular sale so as to make it clear that the trial under the second indictment is for the same identical offense for which he was previously convicted under another indictment. Whilst this is so it seems to us that if several distinct acts of selling intoxicating liquor may be charged in one count of an indictment or information, and that when so charged they constitute but one offense (State v. Storrs, 3 Mo. 9; State v. Palmer, 4 Mo. 454; State v. Fletcher, 18 Mo. 426; State v. Meyers, 20 Mo. 410; State v. Fitzsimmons, 30 Mo. 236; State v. Heinze, ante); that if a defendant be put upon his trial, and is convicted on an indictment or information so framed and the evidence adduced by the prosecution tends to substantially prove each sale or offense so charged, and that if he is afterward tried on another indictment or information charging similar offenses, and if the evidence in the latter case be in substance the same as in the former, that then the several sales
When one is indicted at the same term of court for successive violations of the statute prohibiting the sale of intoxicating liquors without license the better practice would be to present one indictment with a separate count for each offense. By distinguishing the offenses from each other by date or the name of the person to whom the sales are severally made, or by any other intelligent manner, there would be no difficulty in convicting an offender of each offense.
If it be true, as the defendant suggests, that there are other indictments pending against him for similar offenses to those charged in the one now before us, it may be observed that the evidence adduced to prove the several sales in the latter can not be received to prove the sales alleged in the former. In order to sustain the former, proof of sales, other than those proved at the trial on the latter, must be produced, or, in other words, the evidence preserved by the record in the latter can not be introduced at a trial in the former to convict defendant for any of the sales or offenses for which he has already been convicted. As has herein-before been remarked, the said several sales or offenses must be considered as one in so far as any further trial of the defendant therefor in other indictments’ is concerned.
Niarmless^rror. The .defendant asked and the court refused to permit the witness Male to answer the question whether “if there were twenty-four bot-ties there were twenty-four quarts” of beer in the case purchased by defendant. While this question is in form improper the court might have properly permitted it to be answered as it was doubtless sought thereby to prove by the witness that the case of beer contained more than three gallons. But assuming that the witness would have answered the defendant’s question in the affirmative still this was not such an error, if indeed it was an error at all, as would justify a reversal of the judgment, since there was abundant evidence adduced to show other sales made by defendant within the year next preceding the finding of the indictment. The verdict in no event could have been otherwise than it was. And this would be equally so if the case of beer was purchased and paid for by defendant in Kansas City, Jackson county, instead of in Platte county as he contends the evidence shows the fact to have been.
gooTfaith'of"* The defendant’s instruction number 2 by which the jury were told that if they believed from the evidence that the defendant, within the time' hereinbefore mentioned, sold intoxicating liquors in any quantity and permitted the same to be drunk or taken away in quantities less than three gallons, every such transaction amounts to a sale of liquor as charged, as much as if the defendant should openly sell it and receive the money therefor at
Csém”g íiquM: tiuonmo1\Tclnse!s’ The defendant objects that none of the instructions for the state submitted to the jury as part of the state’s case the issue whether he had a license as a dramshop keeper at the tíme of the com-mission of the offenses charged against him in the indictment. There wa% no evidence whatsoever adduced by defendant tending to prove that he had a dramshop license at the time he made the several sales which the evidence tends to show. The law imposes upon a defendant in such cases the burden of proving that he had a license. If he had a license it was a matter particularly within his knowledge and if he desired to invoke it as a defense he should have produced it to the court. Schmidt v. State, 14 Mo. 137; Wheat v. State, 6 Mo. 455; State v. Edwards, 61 Mo. 491; State v. Lipscomb, 52 Mo. 32; State v. Harper, 58 Mo. 530; State v. Wilson, 39 Mo. App. 114; State v. Geise, 39 Mo. App. 189. The rule is that an instruction on the entire case must be so framed as not to exclude from the consideration of the jury the points raised by the other side. But there was no evidence offered by defendant here tending to prove a license. The court had the right to assume that the defendant had no license. This was an issue
VI. We have examined the objection's which the defendant has lodged against the other instructions given for the state but we do not think they are well founded. The several instructions asked by the defendant we think were properly refused. Those given by the court on its own motion for defendant were as comprehensive and favorable, in their scope, to the defendant as he was entitled.
There are several minor errors in the record to which our attention has been called and which we have not hereinbefore noticed for the reason that we do not think they were harmful to the defendant.
The judgment will be affirmed.