125 Mo. App. 465 | Mo. Ct. App. | 1907
The defendant was tried and convicted on information on the charge of selling whiskey on the tenth day of April, 1906, in the county of Cooper, without first having appeared before the county clerk of said county and taken and subscribed an oath not to mix and adulterate with any substance whatever liquors offered by him for sale, and without and before giving bond in the sum of five hundred dollars with good and sufficient surety, as required by law, for the payment of all costs arising from prosecutions for violations of the provisions of chapter 15 of article 8, of Revised Statutes of Missouri, in relation to the adulteration and sale of intoxicating liquors.
Before the jury was sworn the defendant filed a plea in bar setting up in substance: that on the twenty-second day of June, 1906, three separate informations were filed charging him with having violated the statute in question; that these informations charged him with having committed said offense on three different days, to-wit, one on the tenth day of April, 1906, one on the eleventh day of April, 1906, and one on the twelfth day of April, 1906; that a trial had been had on the information charging him with having committed the offense on the eleventh day of April aforesaid. No evidence was offered to support the plea, It was overruled by the court and defendant excepted.
During the trial defendant objected to the introduction of certain evience offered by the State to show that defendant was the owner and proprietor of a certain drugstore, on the ground that in a case already tried the defendant was acquitted for the same kind of an offense as that for which he was on trial. Whereupon the court
At another time during the progress of the trial defendant’s counsel said: “Now, if the court please there is no allegation in the information that Mr. Potter was the owner of a drugstore, or was running anything. There is not a particle of any allegation of that kind. The proof ought not to be broader than the charge.” The court in reply said: “The proof is that the defendant sold this whiskey without having filed an affidavit. The court asks the question because, as a matter of law, if he furnished the materials and put a man in charge of them to sell them, and the man did sell them, it was the act of the defendant.” The defendant excepted to the remarks of the court, whereupon the court said: “Counsel misunderstands the court; the court is making this inquiry in order to find out whether or not the defendant did own a stock of merchandise, and whether of not he did put this witness in charge of it, and whether or not intoxicating liquors were a part of that stock of drugs, and whether or not he was put in charge of it to sell it; and the court made the inquiry because,
The court then proceeded to question the witness as follows: “Now, Mr. Wheeler, were you in charge of a stock of merchandise at Clifton City? A. Yes, sir. Q. Whose merchandise was it? A. Mr. Potter’s. Q. Who directed you to take charge of that merchandise? A. Mr. Potter. Q. Who paid you for taking charge of that merchandise? A. Mr. Potter. Q. Of what did that merchandise consist? A. Drugs. Q. State to the jury whether or not there was any intoxicating liquors in that. A. There was. Q. Of what did that consist? A. Wines, different kinds of liquors. Q. Whiskey? A. Yes, sir. Q. During the month of Jun** did you sell any of these whiskies? A. I did.” Defendant’s counsel then said: “I object and except to the examination made by the court of the witness on the stand in the presence and hearing of the jury. The court has not the right to state its conclusions of law orally to the jury.” A copy of the sworn report of sales of defendant and his clerk, Wheeler, made to the county clerk from the fourth to the thirtieth day of June, 1906, inclusive, was offered in evidence, which showed that whiskey was sold on prescription to various persons on each day except the sixth, fifteenth and twenty-first days. Many errors are alleged on the part of the court occurring during the trial.
First. Defendant insists that he was entitled to a trial by a jury on his plea in bar which right was not afforded him. It seems to be well-settled law as a general rule, that a defendant on such a plea is entitled to a trial by a jury before he can be put to trial on his plea of not guilty. [State v. Hatcher, 136 Mo. 641, and cases cited.] But when the plea in bar on its face shows that the question raised by it, is a matter of law and not of
Second. The defendant’s contention is that a sale made by his clerk was not in law a sale made by himself. Without going into the question whether a mere showing that defendant’s clerk sold the whiskey as alleged would in law constitute a selling by the defendant, it is sufficient to say that there is ample proof that defendant had the whiskey on hand in his drugstore for sale and that his clerk was by him authorized to sell. The law is that, “What a man does by his agent, he does by himself; if a man employs another to do a criminal thing for him, he is guilty the same as though he did it himself.” [1 Bishop on Criminal Law, sec. 264.]
Third. Defendant contends that the statute in question does not include sales made by druggists, otherwise they could not sell it- for medical purposes. This is a misconception of the intent of the law. It is not the purpose to prevent the sale of medicines on prescriptions which may contain intoxicating liquors, but to regulate the sale of liquors as such. For instance, the sale of whiskey or wine alone on a prescription by a druggist without having complied with the statute is an offense,.
Fourth. Defendant contends that there should have been some person designated in the information to whom the sale of whiskey was alleged to have been made. In prosecutions against druggists it has been so held. But this is not a prosecution against defendant as a druggist. The information in the particular mentioned is similar to that in State v. Summers, supra. In that case its sufficiency was not questioned.
The most serious question presented for our review is the statement made by the court in the presence and hearing of the jury, that if the defendant owned the stock of goods and put his clerk in charge thereof, he was liable for any unlawful act of such clerk, and that the act of the clerk was the act of defendant. As has been seen, the court asked the witness numerous questions for the purpose of eliciting information as to whether defendant was the owner of the goods, whether he was in the employ of defendant and was directed by him to take charge of the goods, and if he sold whiskey. The court remarks that if these things were true, “then it would follow as a matter of law that the act of the agent was the act of defendant,” which was tantamount to saying he was guilty of the charge. While the court stated the law correctly, we are not persuaded that the remarks were harmless. The avowed purpose of the court was to ascertain whether certain facts existed which would render the defendant liable for the acts of his clerk. Notwithstanding the court’s deduction of law from the facts was correct, it should have been embodied in a written instruction to the jury. It is said that, “Our statute only contemplates that the media of transmission of thought between court and
The remarks of the court were also in the nature of a commentary on the evidence which, under our system of practice, is not admissible. For the error noticed,' the cause is reversed and remanded;