State v. Durkem

Ellison, J. Defendant was indicted for selling intoxicating liquor in less quantity than one gallon without a license. Objection is made that the evidence does not sustain the conviction. An examination of the testimony satisfies us that the objection is not well taken. Though the proof shows sales by defendant’s clerk instead of by defendant himself, it yet sustains the indictment. Either may be indicted. Schmidt v. State, 14 Mo. 103. Proof of a sale .by the clerk makes aprima facie case against the principal, and if he wishes to escape he must rebut it by proof, showing that the sale was without his knowledge or authority. State v. Reily, 70 Mo. 521. It is next objected that the court erred in giving instruction number three, for the state, wherein -the jury is told that defendant admitted he had no license from August to March 19. Such an admission does not appear in the record, but the instruction cannot have .harmed defendant, for if he had a license between those dates, it was incumbent on him to show it, and not having done so, it is presumed none existed. The instruction, therefore, while not literally true, -and while it should not have been given, as worded, has resulted in no injury to defendant. The judgment is affirmed. All concur.