State v. Clow

131 Mo. App. 548 | Mo. Ct. App. | 1908

GOODE, J.

(after stating the facts). — It is insisted for defendant the verdiet finding him guilty of selling liquors in Lewis county, was unsupported by any evidence, as the evidence was not only insufficient to prove the charge beyond a reasonable doubt, but failed even to prove he sold intoxicating liquors. This proposition is devoid of merit; for the evidence hardly leaves a doubt of defendant’s guilt. He offered no testimony in defense except his own denial under oath that he sold any whisky or beer to the prosecuting witnesses; but he did not deny they got beer from him in the manner we have stated, took it out by the bottle, paid for' it when they got it, and drank it on the premises if they wished to do so. But because written orders on the brewers at Warsaw', Illinois, in which defendant was described as the agent of the customers, were exacted from the latter, it is asserted the defendant was proved not to have made the sales nor have participated in them as agent of the brewers. To accept this as the necessary view from the facts, would allow the law against selling intoxicating liquors without license, to be annulled by a trick. The undisputed evidence shows the Illinois brewers arranged with defendant to open what is called an “order house” in Lewis county, where residents of said county could get liquors by ordering them from the'brewers. To say the jury might not find defendant was the agent of the brewers who had arranged with him for the sale of liquors, merely because orders were given in which he was described as the agent of the customers, would be absurd. We doubt if it would be going too far to hold as a legal conclusion, that the brewers sold the beer through defendant as their agent; and certainly there was ample evidence to justify the jury in finding this was the fact. The court submitted the question in the instructions in phases very favorable to the defendant. In truth in the instructions granted at defendant’s instance, every theory of the defense was presented in its various aspects. If defendant was the agent of the brewers, unquestionably he was guilty of illegal sales of liquors in Lewis county. [State v. Wingfield, 115 Mo. 428.] That such subterfuges as the evidence tends to show were adopted in the present case to get around the law, may be broken through by a jury and a defendant convicted on a finding of the real nature of the transaction, was decided in State v. Newell, 140 Mo. 282, 41 S. W. 751.

It is contended the sale was complete in Warsaw, Illinois, when the order was received and filled and the beer delivered to the railroad company for the customer. But this would not be so if defendant was the agent of the brewers and the beer was shipped to him as their agent, to be delivered to customers on receipt of payment. [State v. Wingfield, supra.] If the beer had been delivered to the railroad company for customers, to be turned over by the company to them, or to defendant as their agent, a different conclusion might be drawn. The evidence does not compel a court to rule these were the facts, but is at least as consistent with the belief in an arrangement between the brewers and defendant, pursuant to which he acted as agent of the brewers.

The court is said to have erred in refusing instructions nine and ten requested by defendant, because the case was one of circumstantial, evidence, and those instructions properly declared the law regarding the cogency of the proof required to justify the conviction of an accused person on circumstantial evidence. Most of the evidence consisted of positive facts, sworn to by Avitnesses regarding sales of beer by defendant, how it Avas ordered and paid for, drunk on his premises, what liquors were kept there and his OAvn statement about the relationship in which he stood to the brewers. The evidence to prove defendant’s guilt was not so far circumstantial as to require the court to grant the customary instructions in cases Avhere the guilt of the accused must be found from circumstances. In instruction seven given at defendant’s request, the jury were informed the law presumed him to be innocent and not guilty, and the presumption of innocence was not a form to be disregarded at the jury’s pleasure, but a substantial part of the law of the land, binding on the jury and requiring them to act on the presumption and acquit the defendant unless satisfied of his guilt beyond a reasonable doubt. And, again, in instruction six, the jury were told the probability of defendant’s guilt as charged was. not sufficient to warrant a conviction, nor was it sufficient that the greater weight of the evidence supported the allegations of the indictment, or that on the doctrine of chances it was more probable he was guilty than innocent; but to warrant his conviction he must be proved to be guilty so clearly and conclusively there was no reasonable theory on which he could be innocent when all the evidence in the case was considered together. We think the defendant had no reason to complain of the degree of proof required to warrant a verdict of guilty, or of any other ruling of the court on the requests for instructions.

The third instruction given for the State, which told the jury the law presumed what defendant had said against himself was true, because said against himself,, etc., is a transcript of an instruction passed on and approved by the Supreme Court in State v. Tobie, 141 Mo. 547, 561, 42 S. W. 1076. What we have said about the right of the jury to find on the evidence defendant was. the agent of the Illinois brewers disposes of the contention that it was error to give the first two instructions for the State, for the reason there was no evidence to support them. There was ample evidence.

None of the errors assigned is well taken and the judgment will be affirmed.

All concur.