State v. Starchich

ROBERTSON", P. J.

Plaintiff in error was convicted of selling intoxicating liquor in violation of what is known as the Local Option Law and has appealed.

He complains of the overruling of his motion for a continuance; of the court permitting a witness to testify that he saw in the plaintiff in error’s place of business, after the information was filed, a certificate from the office of the collector of internal revenue, generally called Government License, and of the court permitting the State to introduce in evidence the certified copy thereof.'

The court committed no error in overruling the motion for continuance. It alleged the inability of the plaintiff in error to procure the attendance of two of his witnesses at the trial. The affidavit thereto did not meet the requirements of section 5204, Revised Statutes 1909, in that it did not state that he believed that what he therein alleged the witnesses would testify to was true. This was a fatal omission. [State v. Richardson, 194 Mo. 326, 336, 92 S. W. 649.] Other reasons are apparent for sustaining the court’s action but it is unnecessary to discuss them since the above point sufficiently justifies the court’s disposition of the motion.

There was no error in admitting in evidence, the certified copy of the so-called government license, notice having been given to produce the original, as it *488covered a period of, time including the date of sale and designated the place of business of plaintiff in error where the sale charged in the information was made. It covered the wholesale and retail business and a jury might reasonably conclude therefrom that the accused did not adopt this method of making a donation to the Government, but that he, in view of other facts disclosed at the trial, paid this tax for the merce-* nary purpose of engaging in the sale of intoxicants in violation of the State Laws, and did not desire to subject himself to prosecution under the Federal Laws. [State v. Sexton, 141 Mo. App. 694, 125 S. W. and State v. Munch, 57 Mo. App. 207.] Neither did the trial court commit any error in permitting a witness to testify that he, after the information was filed, saw the certificate posted in the place of business of plaintiff in error, since it is disclosed that its date covers the date of the alleged offense. It shows that it was issued and outstanding during the time of the alleg-ed offence and this fact is what gives it the probative effect. We fail to discover any reversible error and therefore affirm the judgment.

Farrington and Sturgis, JJ., concur.