State v. Potter

• Court: Kansas Court of Appeals
• Writing for the Court: BROADDUS, P. J.--
• Citation: State v. Potter, 102 S.W. 668, 125 Mo. App. 465 (Kan. App. 1907)
• Decision Date: 20 May 1907
• Parties: THE STATE OF MISSOURI, Respondent, v. JAMES E. POTTER, Appellant

102 S.W. 668

125 Mo.App. 465

THE STATE OF MISSOURI, Respondent, v. JAMES E. POTTER, Appellant

Court of Appeals of Missouri, Kansas City

May 20, 1907

Appeal from Cooper Circuit Court.--Hon William H. Martin, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

John Cosgrove for appellant.

(1) The trial court erred in overruling defendant's plea in bar. An issue of fact was raised by it and entitled defendant to a trial of that issue. State v. Anderson, 166 Mo. 28; State v. Huffman, 136 Mo. 63; State v Schmidt, 136 Mo. 644; State v. Wiseback, 139 Mo. 216; State v. Harris, 47 Mo.App. 558. (2) There was no person named in the information to whom the sale was alleged to have been made. This is necessary in criminal prosecutions against druggists. State v. Martin, 108 Mo. 117; State v. Rofter, 62 Mo.App. 101. (3) The remarks of the court, in the hearing and presence of the jury, to the effect that if the defendant owned the stock of drugs and put Mr. Wheeler in charge thereof, the defendant was liable for any unlawful act Mr. Wheeler may have committed in selling liquors, were prejudicial to the defendant. The same vice is in instructions given on behalf of the State and increased the error to defendant's prejudice. 21 Ency. Plead. and Practice, p., 995; McPeak v. Railroad, 128 Mo. 644; McCombs v. Foster, 64 Mo.App. 613; State v. Shipley, 174 Mo. 572. (4) It is quite evident that a druggist should not be required to make the affidavit required in section 2291, Revised Statutes 1899, for the manifest reason that the oath, if made, would prevent his doing such acts as the law authorizes him to do. The case of State v. Summers, 142 Mo. 586, when critically examined, is not authority against this contention. (5) There is not sufficient evidence to authorize the conviction of the defendant. The report of the number of prescriptions filed from June 4 to July 1, 1906, read in evidence by the prosecuting attorney, does not mention any sales at all, nor does it tend to prove that the sale of any whiskey was made. There is nothing said about selling intoxicants in said report. (6) The remarks of the court were objected to. There was no evidence up to this stage of the trial of a sale, only an opinion or a surmise that a sale was made. (7) If the court should hold that the sale, and not the failure to give the bond and file the oath, mentioned in sections 2289 and 2291, is the offense, and should further hold that the evidence proves a sale, then the man who made the sale, if any, should be prosecuted, and not the defendant. State v. Hammack, 93 Mo.App. 521; State v. Russell, 99 Mo.App. 373; The People ex rel v. Worden, 60 N.Y. 559.

W. F Johnson and Roy D. Williams for respondent.

(1) The trial court did not err in overruling defendant's alleged plea in bar. Said alleged plea in bar was a dilatory plea and was not proved by affidavit nor any other evidence. R. S 1899, sec. 2562; Kelley on Criminal Law, 224. It did not have the requisites of a good plea in bar, in that it did not set out the information, verdict and judgment in the former case. Wheeler v. State (Tex. Crim. App.), 38 S.W. 182; Ford v. State, (Tex. Crim. App.), 56 S.W. 918; Kelley on Criminal Law, 213; Washington v. State (Tex. Crim. App.), 32 S.W. 694. The plea raised no issue of fact. Where the plea shows on its face it is a question of law and not of fact, it is properly passed upon by the Court without the aid of a jury. State v. Manning, 168 Mo. 429; Byas v. State, 51 S.W. (Tex. Crim. App.), 923; Epps v. State, 42 S.W. (Tex. Crim. App.) 525; Wright v. State, 40 S.W. (Tex. Crim, App.) 491; Wheelock v. State, 38 S.W. (Tex. Crim. App.) 182. (2) No person need be named in the information charging the sale of whiskey under this section. This information follows a long line of precedents in this State. State v. Martin, 94 Mo.App. 202; State v. Crowley, 37 Mo. 369; State v. Finn, 38 Mo.App. 506; State v. Summers, 142 Mo. 589. (3) The remarks made by the trial judge complained of by appellant were made in passing upon the competency of testimony and were not in the nature of instructions to the jury, but they announced correct principles of law, and the defendant could not be hurt thereby. Redmond v. Railroad, 90 Mo.App. 75; Cane v. Burch, 4 Mo.App. 571. (4) A druggist is not exempt from the provisions of sections 2289 and 2291, requiring the oath and bond, provided he offers for sale or sells intoxicating liquors. State v. Ferguson, 72 Mo. 297; State v. Summers, 142 Mo. 596; R. S. 1899, secs. 2289 and 2291, 2292; State v. Crowley, 37 Mo. 371; State v. O'Connor, 65 Mo.App. 325; State v. Finn, 38 Mo.App. 507. (5) Appellant's contention in point 7 is without merit. The authorities he cites do not sustain him. They hold only that a clerk filing a prescription for liquor under the dirct supervision of a registered pharmacist is not amenable to the criminal law, as the registered pharmacist is the responsible party. These cases have no bearing on the questions involved herein. State v. McCabe, 94 Mo.App. 122; State v. Schmidt, 14 Mo. 137; Kelley on Criminal Law, sec. 23. (6) The old maxim "qui facet per alium facet per se" applies in criminal cases. 1 Bishop on Criminal Law (2 Ed.), sec. 264; State v. McLain, 92 Mo.App. 461.

OPINION

BROADDUS, P. J.--

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 evidence 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 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 whiskey were made by his employee, Wheeler." Defendant's counsel then said: "And for the further reason that this offense is alleged to have been done on the tenth 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 eleventh 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 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 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 excepted.

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 June did you sell any of these whiskies? A. I did." Defendant's counsel...