27 Mo. 232 | Mo. | 1858
delivered tlie opinion of the court.
This indictment was for a breach of the 36th section of the 8th article of the act concerning crimes and punishments. That section prohibits, undér a penalty, “ exposing to sale any goods, wares or merchandise; keeping open any ale or porter house, grocery or tippling-shop ; and selling or retailing any fermented or distilled liquor, on the first day of the week, commonly called Sunday.”
The indictment charged that the defendant, on, &c., at, <fec., did then and there unlawfully keep open a grocery by then and there permitting persons to enter said grocery and then and there to drink intoxicating liquors.” The proof was that the witness and others opened the door of defendant’s grocery, went in and immediately shut the door after them; that two of them took a dram; that defendant set out the liquor; that defendant did not sell the liquor; that the door of the grocery had been shut previously to the entrance of witness and his friends, and that it was not permitted to stand open. The court instructed the jury as follows: “ 1. If the jury shall believe from the evidence that defendant at any time within one year before the finding of the indictment, and within the county of Laclede, kept open a grocery upon the first day of the week, commonly called Sunday, they should find the defendant guilty. 2. If the defendant was the keeper of a grocery and permitted persons to enter it on Sunday and to drink intoxicating liquors in such grocery, it was keeping open such grocery within the meaning of the statute.” The defendant asked several instructions, which in substance were designed to declare the law to be that the facts proved by the witness and referred to in the instructions given would not themselves constitute the offence punished by the act unless the jury were satisfied that such acts were done or permitted with a view to evade the law, or to allure customers, or to carry on his usual business. These instructions were refused and a verdict was found against the defendant.
There may be attempted evasions of the law, and the jury must judge of these matters ; but it is very obvious that the defendant may have done every thing which is hypothetically stated in the instructions given by the court, and yet totally innocent of a violation of the Sabbath. Juries are however very likely to be able to draw correct conclusions upon such evidence, and can readily understand the motives of certain acts. But the jury must have an opportunity of passing upon the intent as well as the acts.
The court in this case did not allow the question of intent to go to the jury. Yery likely the verdict would have been