State v. Woods

Missouri Court of Appeals

State v. Woods

138 S.W. 681, 157 Mo. App. 550, 1911 Mo. App. LEXIS 425

DecidedJune 12, 1911

StatusPublished

This text of 138 S.W. 681 (State v. Woods) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Woods, 138 S.W. 681, 157 Mo. App. 550, 1911 Mo. App. LEXIS 425 (Mo. Ct. App. 1911).

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Opinion

ELLISON, J.

— Defendant was indicted for selling intoxicating liquors in violation of the Local Option Law. The indictment was in two counts, for two separate sales on the same day, and he was convicted on each.

The chief ground of the appeal is that the trial court did not instruct the jury, though not asked to do so by defendant, that they could find him not guilty-on one count and guilty on another, or not guilty on both counts. The court did instruct on the first count that each separate sale constituted a separate offense and that if the jury believed that defendant sold the liquor to the prosecuting witness they should find him guilty and assess his punishment, etc. The court also instructed the jury, on the second count, that if they believed defendant sold the liquor and that the sale was made on the same day as the sale charged in the first count, but at a different time, they should find him guilty on the second count. To these instructions there was added, that: “The court further instructs the jury that if you believe and find from the evidence that the defendant made the sales charged in both counts of the indictment, then you should return a separate verdict on each count, finding the defendant guilty on each count and assessing his punishment on-each count.” A separate instruction was given on a reasonable doubt of-defendant’s guilt.

We do not see any sound basis for the objection to the instructions. It is truly said that where an instruction purports to cover the whole case and direct a verdict, it should not exclude the theory of the opposite party.. These instructions have not that fault. [553]*553They directed a verdict for the State if the jury believed that defendant sold the liquor, and surely that was right. It would have been altogether superfluous to have added “and you will find for defendant if you believe he did not sell it.” If defendant had asked an instruction to that effect, or that a verdict of guilty could be returned on one count and not guilty on another, it doubtless would have been given. [State v. Barnett, 203 Mo. 640; State v. Espenschied, 212 Mo. 215; State v. James, 216 Mo. 394.]

We do not see that the cases of State v. Vaughan, 200 Mo. 1; State v. Price, 111 Mo. App. 423, and other cases cited by defendant, have any application.

The evidence for the state came from a source that was strongly attacked by way of impeaching circumstances tending to destroy its credibility. All such matters were laid before the jury and heard by the trial court. The matter of belief is for the jury under the supervision of the court on motion for new trial. The verdict has been rendered and wé have nó right to interfere. The judgment will therefore be affirmed.

All concur.

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ELLISON, J.

— Defendant was indicted for selling intoxicating liquors in violation of the Local Option Law. The indictment was in two counts, for two separate sales on the same day, and he was convicted on each.

The chief ground of the appeal is that the trial court did not instruct the jury, though not asked to do so by defendant, that they could find him not guilty-on one count and guilty on another, or not guilty on both counts. The court did instruct on the first count that each separate sale constituted a separate offense and that if the jury believed that defendant sold the liquor to the prosecuting witness they should find him guilty and assess his punishment, etc. The court also instructed the jury, on the second count, that if they believed defendant sold the liquor and that the sale was made on the same day as the sale charged in the first count, but at a different time, they should find him guilty on the second count. To these instructions there was added, that: “The court further instructs the jury that if you believe and find from the evidence that the defendant made the sales charged in both counts of the indictment, then you should return a separate verdict on each count, finding the defendant guilty on each count and assessing his punishment on-each count.” A separate instruction was given on a reasonable doubt of-defendant’s guilt.

We do not see any sound basis for the objection to the instructions. It is truly said that where an instruction purports to cover the whole case and direct a verdict, it should not exclude the theory of the opposite party.. These instructions have not that fault. [553]*553They directed a verdict for the State if the jury believed that defendant sold the liquor, and surely that was right. It would have been altogether superfluous to have added “and you will find for defendant if you believe he did not sell it.” If defendant had asked an instruction to that effect, or that a verdict of guilty could be returned on one count and not guilty on another, it doubtless would have been given. [State v. Barnett, 203 Mo. 640; State v. Espenschied, 212 Mo. 215; State v. James, 216 Mo. 394.]

We do not see that the cases of State v. Vaughan, 200 Mo. 1; State v. Price, 111 Mo. App. 423, and other cases cited by defendant, have any application.

The evidence for the state came from a source that was strongly attacked by way of impeaching circumstances tending to destroy its credibility. All such matters were laid before the jury and heard by the trial court. The matter of belief is for the jury under the supervision of the court on motion for new trial. The verdict has been rendered and wé have nó right to interfere. The judgment will therefore be affirmed.

All concur.

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138 S.W. 681, 157 Mo. App. 550, 1911 Mo. App. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-woods-moctapp-1911.

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