State v. Wentworth

• Decision Date: 06 October 1875
• Parties: STATE v. HORACE WENTWORTH, appellant.
• Court: Maine Supreme Court

65 Me. 234

STATE v. HORACE WENTWORTH, appellant.

Supreme Judicial Court of Maine.

October 6, 1875

1875.

ON MOTION AND EXCEPTIONS.

Complaint to the municipal court of Biddeford, for selling one pint of intoxicating liquors to Charles T. Goodwin, November 6, 1874 alleging " that the said Horace Wentworth" had " once before been convicted of a single sale under section twenty-eight of chapter twenty-seven of the Revised Statutes of the state of Maine, in the county of York, to wit: on the twelfth day of October, A. D. 1874, in the municipal court of the city of Biddeford."

At the trial at nisi prius to sustain the allegation of sale the government offered evidence of sale made by one Libby, a clerk of the defendant to the witness Goodwin, about November 6, 1874. The government officer then inquired of the witness whether he had purchased any of Wentworth prior to this time.

The defendant's counsel seasonably objected, and urged among other reasons, that the government having selected the act upon which they claimed a conviction, and that act being an alleged sale by Libby to Goodwin, they could not then offer proofs of another act at a different time done by the defendant in person and claim a conviction therefor; that the defendant could not in this complaint be then called upon to answer to any other act than that of a sale by Libby to Goodwin; and that it was immaterial how many times Goodwin may have purchased of Wentworth in person before the sale charged in the complaint; but the question and the affirmative answer thereto were admitted to show the assent of the defendant.

The defendant being called as a witness in his own behalf, was interrogated by the government counsel concerning sales of intoxicating liquors made by himself personally. His counsel objected to the inquiries for the reasons (among others) urged against the inquiries made of Goodwin, and claimed that he was not obliged by law to answer concerning sales made by himself prior to the sale charged in the complaint; that the waiver of his privilege to give no evidence tending to criminate himself applied only to the charge under consideration and set forth in the complaint. The presiding judge remarked that the full court had decided otherwise and ruled that the defendant must answer any question put to him by the county attorney in regard to any sales of intoxicating liquors in that store by himself to any person within thirty days. To these rulings the defendant excepted.

To sustain the allegation of a former conviction the government offered the record of the municipal court of the city of Biddeford, attested by Abel H. Jelleson, which consisted of the complaint, warrant, officer's return and the following:

" STATE OF MAINE, YORK, ss.--At a municipal court of the city of Biddeford, in the county of York, holden at the municipal court room, on the twelfth day of October, A. D. 1874, Edmund Warren of Alfred, in said county of York, on the twelfth day of October, A. D. 1874, in behalf of said state, on oath complained to Abel H. Jelleson, judge of said court, that Horace Wentworth of said Biddeford, on the twelfth day of October, A. D. 1874, at said Biddeford, in said county without any lawful authority, license or permission therefor did then and there sell a quantity of intoxicating liquors, to wit: one pint of intoxicating liquor to one Bridget Lee, against the peace of the state and contrary to the form of the statutes in such case made and provided.

And now said Horace Wentworth is brought into court upon a warrant issued by the judge of said court, on complaint aforesaid, to be tried thereon; and said complaint is read to him, and he pleads and says he is guilty of the offense charged against him.

It is therefore ordered by the court that said Horace Wentworth forfeit and pay a fine of thirty dollars, to and for the use of said state, and costs of prosecution, taxed at five dollars and thirteen cents, and stand committed till sentence be performed."

To the admission of this the defendant's counsel objected, and suggested among other things, that the count or allegation was so informal and insufficient in law, that no evidence could legitimately be introduced under it; that it does not allege a prior conviction of the violation of any particular provision of chapter 27, of Revised Statutes of the state of Maine; that it does not allege a prior conviction of a sale of intoxicating liquors; that the record does not purport to be a finding or an adjudication of an illegal sale of intoxicating liquors, or of any offense, and does not show a conviction under section twenty-eight of chapter 27 of the Revised Statutes of the state of Maine.

The presiding judge admitted the record, subject to the defendant's objections, and ruled that it was sufficient in law to sustain the charge of prior conviction as alleged in the complaint.

The defendant also duly filed a motion in arrest of judgment, which the court overruled.

Concerning the evidence of sales made by the defendant, by his own hand, the presiding judge in his charge remarked to the jury:

" Wentworth himself has been on the stand. You remember what his testimony was, whether he testified frankly, and answered the questions candidly and consistently. Is there any testimony in this case that he had been guilty of selling intoxicating liquors within thirty days of the time it is alleged he sold this to Goodwin? If there is, that is not any evidence directly sustaining this prosecution, except so far as I shall now state to you. He had a clerk in his store, one or more. The proof is, so far as there is any proof by the government, that he did not purchase of Wentworth himself, but he purchased of the clerk. If Wentworth has been proved to you to be guilty of selling intoxicating liquors contrary to law in that drug store within thirty days of that time it may have more or less tendency, as you shall judge, to show that Wentworth permitted liquors to be sold there and to show whether or not, if he did permit liquors to be sold there to certain parties, he authorized or winked at the sale of them by his clerk. He testified, as I understood him, unqualifiedly that he had always instructed his clerks not to sell.

You can see what that testimony is, and weigh it. Perhaps a witness or a party situated as the doctor is, might say to his clerk, ‘ now, Libby, from this time you enter my store, understand that you must not sell any intoxicating liquors here. I have it for pre scriptions, and it is necessary in order to preserve certain medicine from souring, that they should be preserved in alcoholic preparations, and understand, although here is whiskey and rum, you must not sell any; if there is going to be any sale of that, I will attend to that.’ If such a sincere remark was made to his clerks, you can see that it would not be proper to convict the doctor upon a sale contrary to, and against his own express directions. If he gave any such directions to his clerk with a wink or anything of that kind, he was a dishonest man; he might say, ‘ Libby, you must not sell any of this,’ you understand he might convey the idea to Libby, he might sell, but he must be very careful to whom he sold. But then that is imaginary. I do not pretend that there is anything of the kind in the case."

To the aforesaid rulings, directions, and course of remarks by the presiding judge, the defendant, the verdict being against him, excepted.

R. P. Tapley, for the defendant, contended that the testimony as to the sales by the defendant personally at other times, had no tendency to show his assent to the sale of November 6, by his clerk Libby; to the point that evidence offered with a view of showing that the defendant had committed other similar offenses, in order to lead to an inference that he was more likely to have committed this, would be inadmissible, he cited Com. v. Miller, 3 Cush. 243; to the point that a sale by a clerk with a knowledge of the fact by the principal was not sufficient evidence of agency, the counsel cited Com. v. Putnam, 4 Gray 16; in the case at bar, he said the instruction was, substantially, that evidence that Wentworth had previously sold was sufficient evidence of Libby's agency to sell, and contended that the authority of the clerk conferred by his clerkship, is, to do acts according to law, and not in violation of law, and in order to make a party criminally responsible for the act of another, as his own act, it should clearly appear he authorized and directed the act; the same degree of proof is required, of the authority to do the act, that is required to show the act has been done, such as removes all reasonable doubt concerning its commission; the criminal conduct of the principal is not the act of the clerk, it is the procuring the act to be done by the hand of the clerk; though ratification is equal to previous authorization, so far as civil liability is concerned, it does not impose a criminal liability; the act when done must be the act of the principal to constitute it an offense as to him; the offense is committed and perfected when the sale is made.

The counsel contended there was nothing in the case to found the authority of Libby upon except the proved sales by Wentworth previously, and the instruction of the court concerning the legal effect of that fact, that the jury understood the fact as authorizing them to find he had such authority, and that they considered it conclusive upon them, and found the authority against the evidence in the case.

He cited Low v. Mitchell, 18 Me. 372, to the point that, although by taking the stand as a witness, the defendant waived the privilege of refusing to give evidence tending to criminate himself, the waiver only applied...