GOODE
J. REYNOLDS, P. J., concurring.
OPINION
GOODE, J.
Defendant was convicted of selling intoxicating liquor (beer)
to a minor, and appealed from his sentence. Two persons,
Louis Wein, Sr., and Louis Wein, Jr., father and son, were in
the employ of the Anti-Saloon League as detectives to hunt
down violations of the law against the sale of intoxicants in
the State. Louis Wein, Jr., testified he was born May 17,
1890, and as the beer was sold November 28, 1907, he was, on
the date of the sale, between seventeen and eighteen years
old. Defendant's father conducted a store in Pike county
at a place called St. Clements. In the prosecution of their
employment to discover and induce violations of the liquor
laws, the two Weins were driving from place to place in Pike
county, endeavoring to purchase intoxicants illegally from
liquor sellers. They thought it was territory where the local
option statutes had been adopted and that any sale of an
intoxicating liquor there was prohibited, so Louis Wein, Jr.,
testified. They visited various towns, including Ashley, Bowling Green and St. Clements, and at the
latter place entered Feldman's store about two
o'clock in the afternoon and attempted to buy beer or
whiskey at retail, from the defendant. While the father
remained in the buggy, Louis Wein, Jr., went into the store
and asked defendant if he would sell a small quantity of beer
or whiskey, and defendant refused to sell except at
wholesale, as his father had a wholesale government license.
Louis Wein, Jr., told his father defendant would not sell
anything under a case of beer and the two drove away. They
talked the matter over to this effect, quoting from the
testimony of the son:
"We
said if he sold it to me he was violating the law, and if he
sold it to my father he was not, and the reason that I went
in and bought it was because if my father had bought it there
would be no case against him, and it was agreed between my
father and I, that I was the one to be pushed to the
front to get him to violate the law, and we had that
agreement and that understanding between my father and
myself; I went in to try to buy the beer or whiskey and
succeeded. Albert Feldman was in the store behind the counter
when I went in the second time. I told him to give me a case
of beer, and he asked me if I wanted pint or quart bottles,
and there was some difference in the price and I took quart
bottles and he went down to the cellar and got the bottles
and brought it out and put it in the buggy, and I paid him
for it, and he said when I brought the case of empty bottles
back I would get $ 1.50 or something like that for the empty
cases and the bottles, and I paid him $ 4.50. At the time I
had this conversation, Feldman was standing about back of the
store. Up to this time my father had not seen Feldman. I do
not think he knew what kind of a man he was. He might have
seen him through the door or window. My father had not been
in the store. I do not remember of him saying anything to my
father when he put the case in the buggy, nor do I remember
of my father saying anything to him. My
father was sitting in the buggy at the time he put the case
in. He did not know who was in the buggy, whether it was my
father or not. He asked me whether I wanted pints or quarts,
and did not ask my father and I paid for the beer. I most
always carry all the money out on the trips. My father
carries some money, but I carry the most of it. I have more
expenses than he. I have worked as detective for the
government myself both in civil and criminal cases. I was a
detective under W. E. Johnson in Indian Territory. I have
been engaged for two years in trying to get people to violate
the law. I have been in the employ of the Anti-Saloon League
since September last. I have worked in seventeen different
states in the Union for the Anti-Saloon League. I have worked
in this state from September, but for the Anti-Saloon League
for the last two years. I now have three states on hands to
work in. Missouri, Kansas
and Illinois. The Anti-Saloon League pays me for my work. I
have not been engaged in Pike county except on this occasion.
Feldman did not ask me what my business was that I remember
of, and I might have told him I was a drummer. At least I did
not tell him my business. If he asked me my business, I would
not have told him I was a detective. We took the beer to Mr.
Whiteside's and asked him if we could leave it there. My
father and I acted together in some ways and in some ways we
did not. We acted together when we were trying to get some
parties to sell whiskey to minors, or selling in a particular
town, or selling without a license, according to the kind of
a case we were working on, or what the man was to be arrested
for; but if the man had no right to sell it, had no retail
license and you could buy it, buy whiskey, and have him
violate the law, we acted together, if it was an offense to
sell it at all sometimes."
Wein,
Jr., testified that before leaving St. Louis, the
superintendent of the Anti-Saloon League had given money to
his father and the latter had turned over part of the money to him. It was with this money the beer was
bought. Wein, Sr., testified he and his son drove to
defendant's place of business, the son went in, then came
out and said he could buy three gallons of whiskey or a case
of beer; that the two Weins then drove away and afterwards
came back, when the son went in again, and he and defendant
carried out a case of beer and put it in the buggy where the
father sat; that he (Louis Wein, Sr.) never gave defendant a
written order to sell whiskey to his son. The witness gave
testimony about being a detective for the Anti-Saloon League
and endeavoring to induce violations of the liquor law at
various places; that he was not aware when he called at
Feldman's place of business the latter only had a license
to sell at wholesale and could not sell in small quantities;
that he did not hear the conversation between his son and
Feldman in the first instance, but his son told him what
occurred. The witness then gave this testimony:
"When
we left St. Clements we went back to Mr. Whiteside's who
lives in the edge of the town of Ashley, and after talking
with him, my son and I concluded to go back to St. Clements
and try Feldman again. My son and I did not talk about how to
get the beer from Feldman on our way back. When we arrived at
St. Clements I told my son to go in to get the beer, that is,
not as a beverage, but as evidence, selling to minors. My son
knew his business and I did not have to instruct him. I told
my son to get him to sell to him and that would be selling to
minors, and if he did, that would be a violation of the law.
I told him that on the road back after the first trip with
him. Feldman came out to the buggy with the beer. That is, my
son and Feldman brought it out and put it in the front of my
buggy, and I said nothing. My son paid Feldman inside of the
store before he came out with the beer. I did not see him pay
him, but that is my judgment. I did not see the money pass,
but all the whiskey he gets in his life he
has to pay for it. He had money in his pocket, and I gave him
more money when he left. I gave him twenty-five dollars for
expenses. He pays all expenses. I gave him twenty-five
dollars in St. Louis."
Further
testifying the witness said he included the price of the beer
in the account of expenses he turned in to the Anti-Saloon
League; put in $ 4.50 for the beer; said his son had been
with him in this detective business for about five years.
Such was the material testimony for the State. According to
the testimony for defendant, on both visits of the Weins to
his store, he talked with the father and conducted the
negotiation for the sale of...
