State v. GeistState v. Geist
- Reporters:
- , ,
- Before:
- Ellison
Lead Opinion
Defendant was charged generally and convicted of the offensе of selling intoxicating liquors in Putnam county in violation of the Local Option Law in force in such county.
He kept a lunch room or restaurant аnd had a clerk or assistant named Martin. The evidence for the State related to sales at different times, said to have heen made tо two men, one named Craft and the other Panes. An instruction was given in which it was submitted that if the jury believed from the evidence that defendant “sold Craft or Pаnes” intoxicating liquors, they would find him guilty. Following the reasoning in State v. Washington, 242 Mo. 401, and State v. McGrath, 73 Mo. 181, error was committed in giving this instruction.
It was mаde an issue whether a sale was made to either, and a part of the jury may have believed a sale was made to Craft but not to Panes, and the remaining jurors may have believed the converse. Thus •a verdict could have been reached under the instruc*394tion without unanimity as to еither. We cannot distinguish the case from those cited.
This is not a casе where one offense is involved, it being a point of dispute as to whiсh of two persons the offense was committed with. But it is a case which, undеr the evidence, involves two distinct offenses, one a sale to Grаft and the other a sale to Ranes. If there had been but one offense in controversy and an uncertainty as to which of two persons wаs the purchaser, then an instruction that if the jury believed the sale was mаde to either, they should find the’ defendant guilty would be proper. For, in such case, all of the jury could unite in a verdict that the offense was cоmmitted and find the defendant guilty, though they might not agree as to which of the two рersons the sale was made to.
But where the State marks out, prima fаcie, two cases, one a sale to Craft and the other a sаle to Ranes, and the defendant makgs a case contradicting bоth, then the entire jury must find that one or both these sales were made, and аn instruction for the State must not be so worded, that less than the entire jury will be authorized to return a general verdict of guilty simply because they all believe he committed one or the other of the two offenses, but cannot agree as to which.
The judgment is reversed and the cause remanded.
All concur.
Concurrence Opinion
(concurring) — On account of the principle announced in State v. Washington, 242 Mo. 401, I feel constrained to cоncur in.the view that the State’s instruction is erroneous. Under it, as worded, it is pоssible that a jury might return a verdict of guilty and yet not agree on which one оf the two offenses mentioned the defendant committed. An instruction in a criminal case should not be so worded as to affirmatively invite or pеrmit this to be done. It would seem that similarly there is just as much liklihood of a jury agreeing upon a verdict, and yet not agreeing upon what particulаr offense was committed, in any *395prosecution for the sale of intoxicating liquor where, under one charge, there is evidence of sеveral different sales and the State’s instruction tells the jury that if they believе from the evidence beyond a reasonable doubt that the defendant sold liquor at any time within the year they will find him guilty. But, in that situation there is nothing in the instructiоn which (like the one at bar) affirmatively makes it possible for the jury to return a verdict of guilty without being unanimous as to the “offense of which they find the defendant guilty. However, any possible chance of this occurring may bе obviated by so wording the instruction as to make it clear that to authоrize a verdict of guilty the jury must agree upon the offense of which they believe him to be guilty. The result reached in the disposition of this ease should not be construed as limiting or preventing a prosecutor from offering, if he so desires, evidence of more than one sale in support of a single charge.