State v. Clow

• Decision Date: 12 May 1908
• Citation: 110 S.W. 632,131 Mo. App. 548
• Parties: STATE v. CLOW.
• Court: Missouri Court of Appeals

110 S.W. 632

131 Mo. App. 548

STATE v. CLOW.

St. Louis Court of Appeals. Missouri.

May 12, 1908.

Rehearing Denied May 26, 1908.

1. INTOXICATING LIQUORS — ILLEGAL SALES — EVIDENCE.

On a trial for selling intoxicating liquors, the evidence held to authorize a finding that accused was the agent of the brewer, and guilty of making a sale in the county where the order house was located.

2. CRIMINAL LAW — TRIAL — INSTRUCTIONS — CIRCUMSTANTIAL EVIDENCE.

Where, on a trial for selling intoxicating liquors, most of the evidence consisted of positive

facts sworn to by witnesses regarding sales of beer by defendant, how it was ordered and paid for and drunk on his premises, and his own statements about the relationship in which he stood to a foreign brewer supplying the liquor, the evidence was not so far circumstantial as to require the court to grant the customary instructions in cases where the guilt of accused was to be found from circumstances.

3. SAME — PRESUMPTIONS OF INNOCENCE — INSTRUCTIONS.

Where the court charged that the law presumed accused to be innocent; that the presumption of innocence was not a form to be disregarded, but a substantial part of the law, requiring the jury to act on the presumption and acquit accused unless satisfied of his guilt beyond a reasonable doubt; and that the probability of his guilt was not sufficient to warrant a conviction, but that, to warrant his conviction, he must be proved guilty so clearly and conclusively that there was no reasonable theory on which he could be innocent — accused could not complain of the degree of proof required to warrant a verdict of guilty.

4. SAME — DECLARATIONS OF ACCUSED.

An instruction that the law presumes that what accused had said against himself was true because said against himself, and the jury are not obliged to believe what accused said in his own behalf, etc., is not erroneous.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

William A. Clow was convicted of selling intoxicating liquors, and he appeals. Affirmed.

An information was filed by the prosecuting attorney of Lewis county against this defendant, charging him with unlawfully selling intoxicating liquors in less quantities than three gallons, to wit, one pint of whisky and one pint of beer, without having a license as a dramshop keeper or any other legal authority to sell the same. The information charged the offense was committed June 23, 1906, in Lewis county. Defendant was convicted by a jury in the justice's court, appealed to the circuit court, was tried again there by a jury, found guilty, and his punishment assessed at a fine of $150. From this conviction, the present appeal was prosecuted.

Defendant had a carpenter shop in the town of Ewing, in Lewis county, in which was an ice box where bottles and cases of beer and other liquors were kept. A firm by the name of Poppel & Giller conducted a brewery in the town of Warsaw, Ill. Defendant would take an order from a customer to Poppel & Giller in the following form; "Ewing, Mo. [Here date is shown.] Poppel and Giller, Warsaw, Illinois — Gentlemen: Please deliver to the C. B. & Q. R. R. Company, Twenty-four quarts of beer for me, for shipment by freight, to W. A. Clow, my agent at Ewing, Mo., and I will remit for same. [Signature of witness], Purchaser." The order would be forwarded by defendant to Poppel & Giller, the beer called for shipped to him by said firm, put in the ice box and bottles of it delivered as called for to the person who gave the order, who would pay 20 cents for each bottle, and was given a card showing the number of bottles ordered, which card would be punched whenever a bottle was taken. Beer and other intoxicants were drunk on the premises, and parties of men had often been seen drinking there. His defense is that he was the agent of the persons who ordered the beer, and not of the brewers in Warsaw, Ill., and the beer was sold by the brewers directly to the customers; the sale occurring in Illinois, and not in Lewis county, Mo. Evidence was introduced by the state which proved defendant had said that while on a train north of Ewing he was met by a man who was looking for some one to run an "order house" at Ewing. He talked with defendant, and asked him if he would like the job, and defendant finally was induced to accept it. Defendant had said it did not make any difference to him about the cost or expense, because the brewers would pay the bill as long as he kept within their instructions. And, again, he told another witness he was running an order house and the brewers were going to stand back of him. He was going to have people sign orders for beer, and take it out when they wanted it. When asked if the arrangement would not get him into trouble, he answered the trouble, if any happened, would cost him nothing, because the brewers would give him $3 a day while he was attending the trial, and he was anxious to have his right to distribute the liquor tested, as the brewers had employed the best lawyers in the country, and he was ready for a fight. A little room 12 feet square was cut off the main part of defendant's shop in which persons who wanted liquor drank it. He had beer and whisky in there and quite a number of cases with names on them. Jugs of whisky were in the room, and from 20 to 50 bottles of beer with ice around them were seen by witnesses in the ice box. Defendant said he did not allow any one to drink in there except those persons who gave orders for liquors; but they could get a bottle, a case or a drink at any time, and pay for it when they got it.

The court gave the following instructions at the instance of the state:

"(1) The court instructs the jury that if you believe, beyond a reasonable doubt from all the facts and circumstances detailed in evidence, that the written orders for beer introduced in evidence in this cause were only a subterfuge, scheme, or device, concocted and utilized by the said William A. Clow, either by himself or with the aid and consent of Poppel & Giller, of Warsaw, Ill., for the purpose of defeating or evading the criminal laws of the state of Missouri governing the illegal sale of liquors in said state, as defined in these instructions, then, if in such event you further find, beyond a reasonable doubt, that the defendant did illegally sell intoxicating liquors in less quantities than three gallons, without first having taken out or having a license as a dramshop keeper, or any other legal authority to sell the same, in the town of Ewing, Lewis county, in the state of Missouri, at the dates alleged in the information, you will find the defendant guilty as charged in said information.

"(2) Although the jury believe from the evidence that the beer charged in the information to have been sold by defendant William A. Clow was received by him from Poppel & Giller, of Warsaw, Ill., for parties in Ewing, Mo., who had previously signed orders therefor addressed to said Poppel & Giller, yet if the jury believe beyond a reasonable doubt from all the facts and circumstances in evidence, the conduct of the defendant and the parties signing said order, that the real purpose and intent of said defendant was to sell and he did sell the beer in question in less quantity than three gallons, without taking out or having a license as a dramshop keeper or any other legal authority to sell the same, for himself or as the agent of said Poppel & Giller, on or about the 30th day of May, 1906, in Lewis county, Mo., to any of the parties signing such orders, the jury will find a sale by defendant and render their verdict accordingly, or find the defendant guilty and assess his punishment at a fine of not less than $40 nor more than $200.

"(3) If verbal statements of the defendant have been proved in this case, you may take them into consideration with all the other facts and circumstances proven. What the proof may show you, if anything, that the defendant has said against himself, the law presumes to...