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39 Mo. App. 114

State v. Wilson

Missouri Court of Appeals

Decided January 21, 1890

Missouri Court of Appeals · decided 1890-01-21

<p>1. Evidence : burden of proof. In a criminal action charging the defendant with selling intoxicating liquors without proper license, the burden is upon the defendant to produce or prove the license, if he had one.</p> <p>2. Practice, Appellate: judicial notice. This court cannot, with respect to a motion to consolidate the action at bar with other actions, take judicial cognizance of the pendency of such other actions, and the overruling of such motion by the trial court cannot be reviewed on appeal, unless the facts warranting the motion are shown by the record. '</p>

Cited by 2 later decisions (1 by the Supreme Court) — most recently November 1909

1 state decisions

Relies on Schmidt v. State · State v. Edwards · Wheat v. State

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1890-01-21

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Biggs, J.,

¶1delivered the opinion of the court.

¶2The defendant was indicted, tried and convicted in the circuit court of Butler county for selling intoxicating liquors in less quantities than one gallon, without *115having a license as a dramshop keeper or any other legal authority to sell the same. The case was tried by a jury; the defendant was found guilty of the charge, and his fine was assessed at the sum of one hundred and fifty dollars.

¶3The court instructed the jury that, if the defendant had a dramshop license, it was his duty to produce or prove it. This, the defendant claims, was error.

¶4The instruction was proper, and announced the correct rule. State v. Edwards, 60 Mo. 490; Schmidt v. State, 14 Mo. 137; Wheat v. State, 6 Mo. 455. If the defendant had a license it was a matter peeuliarly within his knowledge, and, if ■ he relied on it as a defense, he should have produced it. The general rule is, that, when “ the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.” 1 Greenleaf on Evidence [14Ed.] sec. 79.

¶5It appears from the record that the defendant, by motion, asked the court to consolidate this cause, for the purposes of trial, with several other actions of a similar nature against him, which he alleged were then pending in the circuit court of Butler county. The court overruled the motion, and the defendant excepted. This motion was not accompanied by proof of the facts therein alleged, and it is not possible for us to take judicial notice of the fact that there were other indictments against the defendant charging him with other like offenses. It was the duty of the defendant to support this motion by the necessary proof. In the absence of such evidence, we cannot review the action of the court in overruling the motion.

¶6The judgment in this case is well sustained by the evidence, and we have found no error in the proceedings which would authorize its reversal. The other judges concurring, the judgment of the circuit court will be affirmed.

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