State v. Stamper , 136 Mo. App. 401 ( 1909 )

BROADDUS, P. J.

The defendant, the proprietor of a drugstore in Lawson, Ray county, Missouri, was indicted for the illegal sale of liquor. A witness testified that he bought whisky at defendant’s store in the summer of 1907, from Henry Gordon, a clerk in defendant’s employ. The defendant testified that he had given his clerk instructions not to sell liquor without the written prescription of a physician. The jury returned the following verdict, “We, the jury, find the defendant guilty as charged in the first count and assess his fine at the sum .of ($100) one hundred dollars.”

The defendant contends, first, that the verdict is too informal and insufficient to sustain the judgment. The verdict is somewhat informal for omission to use the word punishment after the words assess his, hut we believe it is substantially sufficient. The verdict sets forth that they find him guilty and assess his fine at $100. It being certain, it was sufficient. [Plymouth. Cordage Co. v. Yeargain, 87 Mo. App. 561; State v. Robb, 90 Mo. 30.]

The court gave a number of instructions on each side. Defendant complains of instruction numbered three given for the State which reads as follows: “If you find from the evidence that any person, while in the employ of the defendant as clerk in his drugstore, sold at said drugstore intoxicating liquors in less quantity than four gallons, you should find the defendant guilty, unless you further find that'such sale was made contrary to the order of defendant and without his knowledge and consent and that he had a prescription from a regularly practicing physician; the burden of proving, however,” etc.

The objection is to the use of the conjunctive word and instead of the disjunctive word or, which cast upon defendant the burden of proving the sale was not only contrary to his order, but, also, that he had the prescription of a physician authorizing him to make the sale. We think the objection is well taken. It was a substantial error calculated to mislead the jury to the defendant’s prejudice. And there is no other instruction given on the part of the State or of the defendant correcting the error. The case of State v. Price, 115 Mo. App. 656, cited by the State to show that the error was harmless, has no application to this case, because of a wholly different state of facts appearing in this case. For the error noted, the cause is reversed and remanded.

All concur.