State v. Wingfield

• Decision Date: 02 May 1893
• Parties: STATE v. WINGFIELD.
• Court: Missouri Supreme Court

22 S.W. 363

115 Mo. 428

STATE v. WINGFIELD.

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

INTOXICATING LIQUORS — LOCAL OPTION — ILLEGAL SALES — CRIMINAL PROSECUTION.

1. Defendant, in a local option city, told persons they could order liquor from a dealer in another city, and gave them blank orders, which they filled out, signed, and gave to him to forward. They instructed the dealer to send a certain quantity of liquor to the signers in the care of defendant. The liquor was shipped to defendant, who delivered it part at a time, receiving the money for such part as he delivered. Held that, if defendant acted as agent of the persons who ordered the liquor, he was not guilty of selling, but if he acted as agent of the dealer he was guilty. State v. Houts, 36 Mo. App. 265, distinguished.

2. An instruction that if defendant received the orders, and forwarded them, and the liquor was sent to him thereunder, and he delivered it to those from whom he had taken the orders, and collected the money for himself or for the dealer, he is guilty, was erroneous.

3. The instruction was also erroneous as in conflict with an instruction for defendant, to find him not guilty if the orders were sent to the dealer for liquor, to be shipped to the persons sending the orders, in the care of defendant and the liquor was so shipped, and by defendant received and stored, and afterwards delivered to the persons ordering the same.

4. In such case there was no error in an instruction that if defendant sold liquors, in any quantity, within the corporate limits of the city, he was guilty, or in an instruction to find him guilty if the real purpose and intent of defendant in the transaction were to sell, and he did sell, the liquor to the persons signing the orders.

5. An indictment for unlawful sales of intoxicating liquor need not name the persons to whom the sales were made, nor allege that they are unknown to the grand jury.

Appeal from circuit court, Howard county; Charles W. Sloan, Judge.

Indictment against William Wingfield for selling beer in violation of the local option law. Defendant was convicted, and appeals. Reversed.

J. H. Johnson and S. C. Major, for appellant. The Attorney General, for the State.

BURGESS, J.

The defendant was indicted in the circuit court of Howard county for having sold beer in the city of Fayette, in that county, in violation of the "local option law," which was then in force in that city. The indictment does not allege to whom the beer was sold, and a motion was made to quash it for that reason, and because the law is unconstitutional, which motion was overruled. The evidence for the state shows the following state of facts: The witnesses had gone to defendant's place of business for beer, but were informed by him that he could not let them have it, but he told them they could order it from William J. Lemp, of St. Louis. He gave witnesses blank orders, which they filled out with the number of cases or kegs they wished, signed them, and gave them to defendant to send off for them. These orders were addressed to W. J. Lemp & Co., St. Louis, directing the company to send them the number of cases or kegs they wished, to the care of defendant. The beer was shipped by Lemp from St. Louis, as directed in the orders, to defendant, in his name, and stored by him in his warehouse, and afterwards delivered to the parties ordering it as they called for it; sometimes only a portion of it being called for at a time. As it was delivered, whether the whole amount ordered was taken away at one time or not, the portion that was delivered was paid for at the time.

The court gave the following instructions on behalf of the state, against the objections of defendant: "(1) The jury are instructed that the law commonly known as the `Wood Local Option Law' has been in force within the city of Fayette, Howard county, Mo., since the 30th day of July, 1891, and that since said date it has been unlawful for any person within the limits of said city to directly or indirectly sell, in any manner whatever, intoxicating liquors. (2) If the jury find from the evidence that the defendant, at any time between the 30th of July, 1891, and the 28th day of November in said year, received within the limits of the city of Fayette, Howard county, Mo., orders for beer to be delivered in Fayette, and that he forwarded the same to St. Louis, and that beer was sent to defendant at Fayette, under said orders so taken and forwarded by him, and that he received said beer, and delivered the same, within said city, to the parties from whom he had taken said orders, and collected the money for said beer from said parties, within said city, for himself or for W. J. Lemp, then the jury are instructed that they must find the defendant guilty under the first count of the indictment, and assess his punishment at a fine of not less than three hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail not less than six months nor more than twelve months, or by both such fine and imprisonment. (3) If the jury have a reasonable doubt of the defendant's guilt, they must acquit him, but such doubt, to justify an acquittal, must be a substantial doubt of his guilt, based upon the evidence, and not a mere possibility of his innocence. (4) The jury are instructed that if they find from the evidence that defendant sold intoxicating liquors in any quantity, within the corporate limits of the city of Fayette, between the 30th day of July, 1891, and the 28th day of November, 1891, they will find him guilty under the first count of the indictment. They are further instructed that the second count of the indictment has been dismissed."

The court, of its own motion, declared the law as follows: "(1) Although the jury believe from the evidence that the beer charged in the indictment to have been sold by the defendant was received by him from William J. Lemp, of St. Louis, for parties in Fayette, who had previously signed orders therefor, addressed to said Lemp, yet if the jury believe 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 between said 30th of July, 1891, and November 28, 1891, in Fayette, Howard 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."

The court gave instructions for the defendant as follows: "(1) Although the jury may believe from the evidence that between the 30th day of July, 1891, and the 28th day of November, 1891, what is known as the `Local Option Law' was in force in the city of Fayette, in Howard county, Mo., you are instructed that any person had the right, under the law, to buy beer, and have it shipped to the city, for his own use, and that such purchase could be made by him in person, or through some third person for him, not in any way interested or employed by the seller. If, therefore, you believe that the beer charged in the indictment to have been sold by the defendant was secured by him from William J. Lemp, of St. Louis, for parties in Fayette who had previously ordered the same from Lemp, and by him delivered to said parties, and that the said defendant acted for and represented the parties who ordered and received said beer, and was not in any way employed by the said Lemp, or acting for himself, as selling, then you will find the defendant not guilty. (2) Although the jury may believe from the evidence that between the 30th day of July, 1891, and the 28th day of November, 1891, certain parties living in Howard county, in the state of Missouri, sent to William J. Lemp, of St. Louis, Mo., orders for beer, to be shipped to the care of the defendant, William Wingfield, at Fayette, Mo., and that said beer was shipped upon said orders by said William J. Lemp to said Wingfield, for the parties making said orders, and by said Wingfield received and stored, and afterwards delivered to the parties ordering the same, still you are instructed that such acts do not constitute a selling of beer, as charged in the indictment, or a violation of said local option law, unless you further believe from the evidence in the case that the defendant acted for said Lemp in such sale, or was himself the seller. (3) The court instructs the jury that the law presumes the defendant innocent in this case, and not guilty, as charged in the indictment. And you are further instructed that the legal presumption of innocence is not a mere form, to be disregarded by the jury at pleasure, but it is an essential, substantial part of the law of the land, binding upon the jury in the case; and you should act upon this presumption, and acquit the defendant, unless the state, by evidence, satisfies you of his guilt beyond a reasonable doubt."

The following instructions were asked by defendant, and refused: "(4) The court instructs the jury that the state has introduced no evidence showing any sale of beer by the defendant, as charged in the indictment, in the city of Fayette, and you will therefore find the defendant not guilty. (5) The court instructs the jury that if they find and...