State v. Williams , 22 S.C.L. 94 ( 1836 )

Mr. Justice 0’Nbau,

delivered the opinion of the court.

Upon the first ground of appeal, we concur in opinion with the judge below. To his observations, it is only necessary to add an authority directly in support of them. In Trials per Pais, 334, it is laid' down as a settled rule, that “the jury may give a verdict without tes-fimony, or against testimony, when they,- themselves,- have conusance of the fact.”

Filed 10th May, 1836.

On the second ground, we think a new trial must be granted.- There is only a single act of retailing proved : that was by the defendant’s clerk,- in his absence, and after he, the defendant, had refused to sell to the witness. From a single isolated act of retailing by the clerk, no certain inference, that it was by the authority of the defendant, could be drawn ; but whatever probability that it might have been so, is negatived by his previous refusal to sell. To authorize the jury to convict, it ought to be shewn, that it was the usual course of business, at the defendant’s store, to retail. When this was done, the act of the clerk would be the act of his principal.

The motion for a new trial is granted.

JOHN B. O’NEALL.

We concur,

HENRY W. DESAUSSURE, JOSIÁH J. EVANS, WE HARPER, J. JOHNSTON. B. J. EARLE,