State v. Stamper , 159 Mo. App. 382 ( 1911 )

BROADDUS, P. J.

The defendant was indicted as a druggist for the illegal sale of intoxicating liquor, tried and convicted. . Erom the judgment he has appealed. On the trial it was admitted that defendant at the time the alleged illegal sale was made, was a pharmacist and dealer in drugs in the town of Lawson, Ray county, Missouri; and that one Henry Gordon in his employ as clerk and pharmacist was a registered pharmacist in said county and state.

A witness by the name of Hightower testified that he bought of said Henry Gordon one pint of whiskey for which he paid twenty-five cents in defendant’s said drug store, in July or August, 1907; that he had no written prescription from a physician; and that there was no one in the store at the time except himself and said Gordon. Another witness for the state testified that he was in said drug store several times -during the summer of 1907; that he saw both the defendant and Gordon sell intoxicating liquor in the store without prescriptions and that he also bought liquors from both of them without having a prescription. Several witnesses testified that Gordon had the reputation of selling liquor in defendant’s drug store during the summer without prescriptions.

The defendant testified that he instructed his pharmacist, Gordon, in good faith not to sell liquor without the written prescription of a physician. And •defendant further testified that if Gordon did- sell liquor in the summer of 1907, without a prescription, he had no knowledge of it. His son, David, testified that he heard his father instruct Gordon not to sell liquor without a prescription.

The prosecuting attorney in his address to the jury used the following language: “If you men want the criminal laws of this county enforced, convict this man.” Defendant asked the court to repremand him for using such language, which the court refused to do. At another time he spoke as follows: “I may-do my duty; the sheriff may do his and the judge may do his, but you can go back to Knoxville township and Grape Grove township and howl all you please about the officers faffing to do their duty, yet unless you convict these men for selling liquor the officers can do nothing.” Again counsel for defendant asked the court to reprimand the attorney and the court again refused to do so. The attorney then continuing said.: “Gentlemen, by the court faffing to reprimand me, I take it that I am using the right kind of argument.”

The appellant contends that it was the drug clerk who was tried instead of the defendant, there being no evidence offered to contradict the defendant’s evidence that the liquor was sold contrary to his instructions and no effort to impeach his reputation or that of his witnesses for truth and veracity. It- is held in this state that where a person acts as clerk or agent of another in selling intoxicating liquors in violation of law either may be indicted. [State v. Brown, 131 S. W. 760.] “A druggist will be held criminally hable for the act of his clerk committed in his absence in selling liquor in violation of law, unless he shows that the sale was made without his assent.” [State v. Reiley, 75 Mo. 521.] And it is held that: “If an agent sells intoxicating liquors without the consent of his principal, the principal will still bé hable, unless he shows such sale was unauthorized and forbidden, and the burden of so showing would be upon him.” [State v. Heinze, 45 Mo. App. 403.] This ‘ease falls within the rule stated and as the burden was upon defendant to show that it was -forbidden by him it was for the jury to, say whether he had so shown. Defendant seems to think that because his evidence was not directly contradicted and himself and witnesses unimpeached the prima facie case made out by the state was rebutted. But in this defendant is in error. It was for the jury to pass upon the credibility of defendant and Ms witnesses and the court properly-submitted that question to the jury. And there was no error in the admission of evidence as to the reputation in the commumty of the clerk, Gordon, as a violator of the law regulating the sale of intoxicating liquors. [State v. Oliphant, 128 Mo. App. 252.]

It is a rule in tMs state to confine the prosecution to evidence relating to the sale alleged. [State v. Seigenthaler, 121 Mo. App. 510.] And there can be no good reason assigned why it is not a just and proper rule, for it would be a hardsMp upon defendant to charge Mm with a specific act and convict Mm with another and different act of wMeh he had no notice and perhaps was unprepared to meet. But there are circumstances in wMeh proof of other unlawful sales of liquor is competent, not for the purpose of proving the specific act charged, but to show a habit or course of business of the defendant. As in tMs case, defendant seeks to escape liability for the specific act of Ms clerk in seMng the intoxicating liquor contrary to law on the ground that he had forbidden Mm to sell without a prescription. Evidence, therefore, should be admissible to show that both he Mmself and Ms clerk had been in the habit of making sales of liquor contrary to the provisions of the drug law. The evidence tends to rebut that of defendant that he had in good faith forbidden agent to make such illegal sales and as such it is impeacMng evidence. [State v. Oliphant, supra, l. c. 261.] Furthermore, it is said: “If there be knowledge with acquiescence, it is tantamount to consent, and therefore the consent may sometimes be established by proving knowledge. So consent may be proven though it cannot be shown that the proprietor knew of the specific act charged, for Ms consent may be general, and, in most instances, is general, rather than special.” [State v. Crawford, 151 Mo. App. l. c. 405.] Under the ruling in that case we believe evidence of other-sales made by Ms clerk and sales made by himself was competent to show in a general way defendant’s consent to the specific act charged.

The language used by the prosecuting attorney to which exceptions are taken was somewhat unusual on such occasions. It was a strong appeal to the jury to perform their duty and enforce the law, and to convict the defendant. And when we take into consideration the reluctance of jurors as a rule to enforce the laws prohibiting the sale of intoxicating liquors, we are not prepared to say that the prosecuting attorney in his remarks went outside of the pale of legitimate discussion. There is nothing in what he said that can properly be construed to mean that the jury should convict the defendant whether he was guilty or not guilty, but that they should enforce the law because he was guilty. The cause is affirmed.