State v. Potter

• Decision Date: 20 May 1907
• Citation: 102 S.W. 668,125 Mo. App. 465
• Parties: STATE v. POTTER.
• Court: Missouri Court of Appeals

102 S.W. 668

125 Mo. A. 465

STATE v. POTTER.

Kansas City Court of Appeals. Missouri.

May 20, 1907.

1. CRIMINAL LAW — PLEA OF FORMER ACQUITTAL — JURY TRIAL.

Selling whisky on different days in violation of the statute is not a continuing offense, but each sale is a violation of the statute, and hence, on a prosecution for selling on one day, a plea that defendant had been acquitted of selling on the following day presented a question of law for the court, and defendant was not entitled to a trial by jury on his plea.

2. INTOXICATING LIQUORS — SALE BY AGENT.

In a prosecution for selling whisky without complying with the statute, where it was shown that defendant had the whisky on hand in his drug store for sale, and that his clerk was by him authorized to sell, the sale by the clerk was in effect a sale by defendant.

3. SAME — STATUTORY PROVISIONS — DRUGGISTS.

Rev. St. 1899, c. 15, art. 8, § 2278 [Ann. St. 1906, p. 1431], relating to the adulteration and sale of intoxicating liquors, includes sales made by druggists.

4. SAME — INFORMATION — DESIGNATION OF PURCHASER.

An information in a prosecution for selling whisky without complying with the statute is not insufficient because it did not allege to whom the sale was made.

5. CRIMINAL LAW — TRIAL — INSTRUCTIONS — NECESSITY OF WRITING.

In a prosecution for selling whisky without complying with the statute, the remark of the court in the presence of the jury, after questioning defendant's clerk who testified that defendant owned a stock of goods including whisky, that he was in charge thereof and sold the whisky under defendant's direction, that, if these things were true, then it would follow as a matter of law that the act of the clerk was the act of defendant, though it stated the law correctly, constituted error, since it should have been embodied in a written instruction to the jury.

6. SAME — COMMENT ON EVIDENCE.

Such remarks were also erroneous as being comments on the evidence.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

James Potter was convicted of selling whisky in violation of law, and appeals. Reversed and remanded.

John Cosgrove, for appellant. W. F. Johnson and Roy D. Williams, for respondent.

BROADDUS, J.

The defendant was tried and convicted on information on the charge of selling whisky on the 10th 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 $500 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 of 1899 [Ann. St. 1906, p. 1431], 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 22d 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 10th day of April, 1906, one on the 11th day of April, 1906, and one on the 12th day of April, 1906; that a trial had been had on the information charging him with having committed the offense on the 11th 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 evidence offered by the state to show that defendant was the owner and proprietor of a certain drug store, 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 said: "Objection overruled, for the reason that counsel is mistaken about that; no evidence was introduced in that case." Defendant's counsel then said: "I object further for the reason that the defendant has already been tried and acquitted on the charge for selling liquors during the month of May." The court then said: "The court directed an acquittal for the reason that the state had not shown that defendant, Potter, was the owner and proprietor of a stock of drugs at Clifton City at which sales of whisky were made by his employé, Wheeler." Defendant's counsel then said: "And for the further reason that this offense is alleged to have been done on the 10th of April, 1906, whereas the trial yesterday resulted in an acquittal for an offense of a similar character alleged to have been done on the 11th of April." The court also overruled this objection. 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 drug store, 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 whisky 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 or 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, if these things were true as matters of fact, then it would follow as a matter of law that the act of the agent was the act of the defendant." To all of which defendant...