Hill v. State

• Decision Date: 19 May 1917
• Docket Number: Criminal 400
• Parties: WALTER HILL and PETER W. DUNCAN, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

165 P. 326

19 Ariz. 78

WALTER HILL and PETER W. DUNCAN, Appellants, v. STATE, Respondent

Criminal No. 400

Supreme Court of Arizona

May 19, 1917

APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge. Affirmed in part; reversed in part.

Messrs Armstrong & Lewis and Mr. Charles B. Ward, for Appellants.

Mr Wiley E. Jones, Attorney General, and Mr. R. Wm. Kramer and Mr. Geo. W. Harben, Assistant Attorneys General, for the State.

OPINION

CUNNINGHAM, J.

The appellants are charged with having sold intoxicating cider to I. E. Troutner, at Phoenix, Arizona, on July 16, 1915.

The appellant Walter Hill, as a witness in behalf of the defendants, according to the abstract of record, testified with regard to his connection with the alleged sale of intoxicating liquor as follows:

"I am president of the Walter Hill Company. It is engaged in the wholesale business, produce, fruits, candies, fountain supplies, and summer drinks; by fountain supplies I mean cocoa, chocolate, cider, grape juice, Coca-Cola -- soft drinks. I have distributing houses at Ray, Mesa, and Prescott and Phoenix, Arizona, and Los Angeles, California. I am general manger of all branches, and have direct control of the affairs of the corporation. I know I. E. Troutner. I first saw him the latter part of June, about the 20th, in my office. He came in to inquire about cider. I told him we had two kinds of cider; one made by Barrett & Barrett of Chicago and another by Lewis & Leech of Denver. I made him prices, Denver cider 70 or 75 cents. I had some cider in stock at that time; I think it was in 28-gallon barrels. He made no purchase at that time. According to the records he made his first purchase June 26th. I can't say just how much he purchased then; I think he talked with me three different occasions about cider. The first shipment I received from Lewis & Leech came the middle of June; I think he bought two kegs on June 26th. His next purchase was on July 1st, three 28-gallon barrels. On July 2d he purchased some more. On June 27th we held up his order on account we read in the papers about bulldog cider. I didn't know what bulldog cider was until I talked to Mr. Brisbois, and then went back to the store and got a bottle of Lewis & Leech cider and took it over to Mr. Gandy. I gave it to Mr. Gandy [the county attorney] . . . . About four days after going to the district attorney's office I made a test of the cider by drinking some of it. In the meantime I didn't sell any. Mr. Troutner, Mr. Hill [an employee of the same company,] and the bookkeeper were present. Mr. Troutner poured it out of one of the kegs purchased from Lewis & Leech, being the same brand of cider sold to Troutner on July 16th. I have dealt in cider here in Phoenix only about a year; I made cider in Canada. This cider that I drank was sweet cider. After making this test I made a second sale to Troutner on July 1st. I next had a talk with Mr. Troutner in the afternoon of July 7th. He came in the store while I was getting ready to leave for California. I was in a hurry to get up home. He said he was selling lots of cider, and he wanted me to make him a better price on the Denver cider. I told him I would make it 70 cents in 50-gallon kegs. He ordered five barrels, and said he was in a hurry for them. I told him I would wire, which we did. I didn't tell him we were receiving weekly shipments. I went to California the next morning and returned on September 13th. This was the same cider we drank and tested on the 7th. Between the 7th day of July and the 13th day of September I personally had nothing to do with the sales, deliveries, or collections of money for sales of cider, but of the Walter Hill Company House. I received no money for cider on July 7th, and I made no entries in the books of any sale . . . . The cider which I sold Mr Troutner was pure apple cider and nonintoxicating beverage. I never sold any alcoholic liquor of any kind to any person to my knowledge."

On cross-examination the witness explained that the test made by drinking the cider was that he drank a cupful, that would hold a big wineglass.

Defendant Duncan testified that he was employed by the Walter Hill Company during June and July as manager.

"I oversee the business and do the buying and selling. We handled cider shipped from Denver . . . . The Lewis & Leech cider was branded 'pure Apple Cider'; I knew Troutner. I had a business transaction with him on June 26th. He purchased some cider at that time and paid me for it. On July 10th he got some more cider. He didn't buy any cider from me on the 16th. The first I learned there had been cider ordered from Denver was on July 12th. Mr. Troutner came in and wanted to know if his cider had come. Hill went away on July 7th. Troutner came in the store most every morning inquiring about his cider; he said Mr. Hill had ordered five barrels of cider for him. I was not present when Troutner got the cider on the 16th . . . ."

Witness went to California on July 16th and returned July 21st. On cross-examination witness stated that his initials are on the invoice as the salesman.

"I put them there; on the 16th he asked me if it was in; I had talked with him the day before."

P. L. Simpson, the shipping clerk for the Walter Hill Company, testified in behalf of the state that:

"I believe Mr. Hill is proprietor. Mr. Duncan is manager; Mr. Duncan has charge of the place during Hill's absence; . . . I know I. E. Troutner; I know he made purchases from the Walter Hill Company. He was buying cider from the company. The system or method used when purchases were made like Troutner's were made in the regular manner, were made on one of our bills, Walter Hill Company's bills; whoever takes an order makes out those bills; I have a distinct recollection of one particular time when Troutner made purchase. There was a check made in payment. I made out the check I think at the shipping clerk's desk . . . ."

Witness was here shown four invoices, which he recognized, and identified two of them as having been receipted by Duncan; one he did not know whose receipt it was, and one, receipted by himself. Witness receipted the invoice of July 16th. Said invoice is in the handwriting of Duncan and receipted by witness, and was first seen by witness lying on his desk. On cross-examination witness stated in explanation of the occasion of his having receipted the bill of invoice, as follows:

"I happened to be the only one in the sales department at that time of the day, and I was collecting the money there just the same as I would for anything else that happened to be left there. When Mr. Troutner came up he said he wanted to pay this bill I have here. Then I wrote the check. I am not sure whether he gave it to me or whether it came from the office. The check is in my handwriting and he paid the bill to me; the bill for this cider was on the desk. If it was put there for me to collect the desk was the proper place. I find other bills there as shipping clerk for me to collect, not all of them, but in the ordinary course of business. There was nothing out of the way at all in this bill being laid there. Mr. Duncan was not there when I wrote the check for Mr. Troutner. He was not present when I was paid the money."

Here we have the story of the transaction as told by the employees of the Walter Hill Company from the incipiency of the transaction to the point of the actual delivery of the cider to Troutner's possession. The fact of delivery actually made to Troutner is not contested.

Walter Hill, the general manager of the Walter Hill Company, opened negotiations with Troutner to furnish him five barrels of Denver cider at 70 cents per gallon, for which Troutner agreed to pay upon delivery. Walter Hill wired to Denver for the cider, ordering its immediate shipment. This occurred on July 7th. Walter Hill left the state for the benefit of his health on the 8th of July. On the 12th of July, Troutner inquired of Mr. Duncan about the cider Mr. Hill had wired to Denver for, at Troutner's request. Duncan knew nothing of that occurrence before Troutner's inquiry. Having been informed of it by Troutner, and after Troutner had made daily inquiries of whether the cider had arrived, on July 16th Duncan made out the usual bill of invoice for the five barrels of cider to Troutner, at the price Hill had made to Troutner, placed the invoice on the shipping clerk's desk as a memorandum, and he, Duncan, on the same day left the state and did not return until July 21st. The system followed by the Walter Hill Company in making sales of cider was the same system followed in making sales of all other goods handled by it. When a sale had been made, a bill or invoice of the thing sold was usually, but not always, made out and furnished the shipping clerk. In this instance, Peter W. Duncan made out the bill or invoice of the Troutner transaction and placed it on the shipping clerk's desk. He did this relying on the statements made to him by Troutner of Troutner's prior transaction with Walter Hill. Simpson, the shipping clerk, found the invoice on his desk, and Troutner offered to pay for the cider. Simpson's duty was to collect such bills, and he did receive the money offered by Troutner.

The relation of Hill and Duncan to the transaction in question is important to an understanding of the issues involved with regard to the liability of the parties.

"All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present have advised and encouraged its commission, . . . are principals in any crime so committed." Section 27, Penal Code...