Arnheiter v. StateArnheiter v. State
- Reporters:
- , ,
- Before:
- Lumpkin
Section 422 of the Penal Code reads as follows: “ Any рerson who shall pursue his business, or the work of his ordinary calling, on the Lord’s day, works of necessity or charity оnly excepted, shall be guilty of a misdemeanor.” Arnheiter was indicted and convicted under this section. The charge was that on a named Sabbath day he carried on the business of “ running a meat market,” this business being his ordinary calling, by selling meat, “ said selling not being a work of necessity or charity.” The testimony of certain witnessеs sworn in behalf of the State demanded a finding of the following facts: The accused was by occupаtion a butcher. On divers Sundays within two years prior to the finding of the indictment, he kept his place of business open, and in his presence and with his consent his employees sold and delivered meats to customers fоr cash. These customers made their purchases on the Sabbath day merely for their convenienсe, preferring not to buy on the day previous, because on Sunday they could obtain fresher meats. There was nothing in any of the testimony even remotely tending to show that any particular sale of *573meat wаs made on account of an emergency rendering it necessary for the customer to procure meat on the Sabbath day. The accused introduced no testimony, but relied solely upon a statement in whicb he positively asserted that he had not himself sold any meats on Sunday, and was not present and had no knowledge of any sales on the Sabbath day which may have been made by his employees. He further stated that if there were any such sales, they were without his knowledge or consent. A verdict of guilty was returned by the jury, and Arnheiter is here complaining of a judgment overruling his motion for a new trial, in which he assigned error on certain instructions given to the jury, and attacked the verdict on the ground that it was contrary to the evidеnce.
The court charged, in substance, that, inasmuch as the accused denied having made either dirеctly or indirectly any sales of meat-on the Lord’s day, the State was not required to show that the partiсular sales referred to in the testimony of its witnesses were not works either of necessity or of charity; and further, that before the accused would be authorized to set up the defense that “ the sale or thе pursuing of the business was a work of necessity or charity,” he must admit the doing of the act charged against him in thе indictment. We can not uphold these instructions as-correct propositions of law. It is, in every prоsecution based upon the above-cited section of the code, incumbent on the State tо allege and prove that the acts done by the accused in the course of his ordinary calling were not works of necessity or charity; and the accused does not, by a denial that he did these aсts on the Sabbath day, relieve the State of the burden of proving its charge as laid. We do not, howevеr, think the erroneous instructions just referred to really operated to the prejudice of the aсcused. As will have been seen, the State affirmatively showed that he did carry on his ordinary calling on the Sabbath day, and also that in doing so he was not engaging in any work of necessity or charity. The mere fact thаt his customers preferred delaying the purchase of their meats until Sunday, in order that they might get the same fresher than they would be if bought on Saturday and kept over night, does not, under the statute, make a case of necessity for selling on the Lord’s day; and there is no suggestion of any charitable intention on the part оf the accused, for the testimony was that he sold for cash. It made not a particle of difference that the business was’ *574.actually conducted by the employees of the accused ; for if he was •рresent and gave his sanction to their so doing, he was, of course, responsible for their acts. Assuming as true the statements made by the witnesses who testified in behalf of the State, the accused was, as matter of law, guilty of the offense with which he was ■charged. If his statement presented the real truth in regard to the mattеr, he was not guilty under any view of the law. The court in its charge so instructed the jury. Therefore, the only issue upоn which they were called upon to pass was whether his statement was entitled to greater weight than thе testimony of the State’s witnesses. The erroneous instructions pointed out above did not •operatе otherwise than to eliminate from the consideration of the jury all question as to the necessity of thе alleged sales; and this was not a hardship upon the accused, for there was no such issue •involved in thе case.
The motion for a new trial contains numerous other grounds presenting in different form the points disposed of above. There is no need, however, for dealing specifically with these grounds; for, so fаr as this branch of the case is concerned, it is absolutely controlled by what has already been sаid. The further complaint is made that the court gave to the jury an erroneous instruction as to how they should reconcile conflicting testimony. It is useless to inquire whether this instruction was or was not correct, there being no conflict whatever in the testimony of the State’s witnesses, .and the accused having introduced no evidence at all in his behalf.
Judgment affirmed.
All the Justices concurring, except Lewis, J., absent.