Gathings v. State

Tabbell, J.: At the February term of the Monroe county circuit court, — 347 — 1868, C. M. Weaver, G. W. Gathings, and J. Burke, were indicted for selling spirituous liquors in less quantities than-one gallon, without a license. Weaver and Gathings were arrested, but as to Burke the capias issued on the indictment was returned by the sheriff “ not found.” At the July term, 1870,. of said court, the plaintiff in error, Gathings, was tried, convicted, and fined in the sum of one hundred dollars, besides costs. Upon the trial the following instructions were given to the jury by the court on the part of the state: 1st. If the jury believe from the testimony that defendant was.one of the firm of G. W. Gathings & Co., and that whisky in less quantity than'one gallon was sold in his house by his consent and connivance, they will convict. 2d. If the jury believe, from the testimony, that Burke was a clerk or agent of defendant, and sold whisky as such clerk or agent, as a part of the business of his principal, they may presume his concurrence or consent. The following were given for defendant : 1st. It devolves upon the state to prove every material allegation charged in the indictment to make the case out. 3d. The jury must find their verdict from the testimony adduced, and unless they believe, from the evidence, that the accused did the act charged in person, they cannot find the accused guilty, unless they should believe, from the testimony, that the act charged was committed by some one else, with the knowledge of the accused, or by the authority of the accused. The following was refused: 2d. The defendant asks the court to charge the jury, that unless they believe, from the testimony, that Gathings, the defendant, and Weaver, were partners in the sale of spirits, or that the defendant sold the spirits himself, or consented to the sale, they will find the defendant not guilty. The following testimony was objected to by the district attorney, to-wit: A witness for the state, on cross-examination, testified that — 348 — (i the house or store of G. W. Gathings & Go. was a dry-goods house, including sugar and coffee, and some few other articles in the grocery line; that he was frequently about the house ; once bought a pair of shoes in the house of G. W. Gathings, and never saw any whisky in or about the house which evidence was excluded by the court from the consideration of the jury, and the defendant excepted. A motion for a new trial was made by defendant upon the following grounds: 1st. Because the court erred in refusing-charges asked by defendant, and in giving charges for the state; 2d. Because the jury found contrary to the law and evidence; which motion was overruled, and the defendant excepted and brought the case to this court for review, assigning for error that, 1st. The court below erred in admitting the .testimony of William McMillan to go to the jury. 2d. The court below erred in excluding from the jury that portion of the testimony of George 0. Coleman elicited upon . cross-examination. 3d. The court below erred in giving- charges asked for by the state. 4th. The court below erred in refusing charges asked for by defendant. 5th. The court below erred in overruling the motion of defendant for a new trial. 6th. It was error to try plaintiff in error before the cause was at issue or disposed of as to said Weaver and Burke, and error to try him separately. KTone of the causes of error are well taken. “Where several persons are jointly indicted, they may be tried separately, at the election of the commonwealth to do so. ” 1 Wharton’s Am. Or. Law, § 433 ; Curran’s case, 7 Gratt., 619. “ In an indictment against two or more, it is generally true that the charge is several as well as joint;' so that if one is found guilty, judgment may be rendered against him, although one or more may be acquitted. To this rule there are exceptions, as in case of conspiracy or riot, to which the — 349 — agency of two or more is essential; but violations of the license law, not being within the reason of these exceptions, come under the general rule. ” lb., § 435; State v. Smith, 2 Iredell., 402; Com. v. Griffin, 3 Cushing, 523; State v. Lyerly, 7 Jones, N. C., 159. “ When several persons are jointly indicted, and convicted, they should be sentenced severally, and the imposition of a joint fine is erroneous. ” Ib.; Waltzer v. State, 3 Wis., 785; Stranghan v. State, 16 Ark., 37; Cord v. Cord, 14 B. Mon., 386; vide, also, State v. Gay, 10 Mo., 440; State v. Barry, 21 Mo., 440; 6 Bennett, 504. The State v. Lyerly, 7 Iredell, 158, was an indictment against a man and woman for adultry. The man alone was put upon trial. To objection made in arrest of judgment the court say: “ It is well settled, ” that “one, in the absence of his confederate, may be put upon trial, convicted and punished; the possibility that the confederate may be after-wards acquitted, will not arrest the execution of the law upon one found guilty. ” 7 Dana, 229, was a joint indictment, and a general verdict of guilty against several, for keeping a tippling house. The court said': “ In prosecutions in behalf of the commonwealth, each individual is responsible for his own individual act, and must answer to the commonwealth, personally, for his personal offense. If both are guilty, each is guilty, and each must make his fine to the commonwealth, for the penalty fixed by law to the offense of which he has been found guilty. ” But the record shows no objection to the separate trial of Gathings. Bor aught that appears, the defendant elected to be tried separately, and prior to any issue as to the'other defendants, and before any disposition of the charges against them. In Curran’s case, 7 Gratt., 619, the court say: “The presumption is that defendant elected or assented to a separate triahprior to the disposal of the indictment against his co-defendants.” The testimony excluded from the jury by the court was — 350 — wholly immaterial and unimportant. It was entirely negative and could not have had the slightest weight with the jury. In fact, it neither established nor negatived, nor tended to establish or negative anything, except. the utter igno-ran pe of the witness, as to the real issue in the trial. The second instruction asked by defendant, was properly refused by the court. The remaining instruction submitted the case much more favorably for the defendant, than the court was required to do. Rev. Code, 199, art. 9, enacts that, «if any person shall sell any vinous or spirituous liquor, in any quantity less than one gallon, without a license therefor, * * the person so offending (and also, any person who may own, or have any interest in, any vinous or spirituous liquors, sold contrary to this act), shall be liable to indictment.” This statute is held in Whitton & Ford v. the State, 37 Miss., 380, to introduce a new rule of evidence. Ford was not present at the sale in that case, and so far as the record showed, or the witnesses on the trial .knew, he had no knowledge of the sale. The defendants, Whitton & Ford, were partners, jointly indicted and convicted. • The court say that Ford was responsible for the illegal act of his co-partner, whether he participated in the act or not. Of this statute, the court, in that case, say, “The object is as plain as its terms are clear. It was intended to reach a grievous evil in the community, by which persons of more or less responsibility engaged worthless and profligate persons in the business of retailing spirituous liquors for the profit of their employers, in violation of the laws of the land, resorting to all sorts of. pretences, artifices, and frauds, to conceal the. violations of law, or the guilty participation of the principals in it. The evil required a stringent process to reach it, and the legislature designed by this statute, in some degree, to meet and prevent it. Persons who, by their means, set up and enable others to engage in a business which in its very nature is almost inseparable from violation's of law, have no right-to complain that the tribunals of justice are clothed with adequate powers to drag them from this conceal — 351 — ment, and to visit upon them some slight degree of punishment, for the misery and crime which they have been instrumental in inflicting upon the community within the range of their influence.” “ There is no partnership in crime, and therefore it is not necessary to allege that several committed an offense as partners.” Gay v. State, 10 Mo., 441. So, it is immaterial under this statute, whether the whisky was sold by the defendant, or by his servant, or partner,'with or without his knowledge or assent, having an interest in the liquor sold, he is indictable, whether he assented to, or knew of the sale, or not. 27 Miss., 379; 1 Bishop Cr. L., §§ 430, 432, 616, 619, 1001, 1155 ; 1 Gray, 553; 5 Humph., 138; 6 Dana, 293; 14 Mo., 359; 31 ib., 520; 21 Vt., 484; 4 Ohio St., 563; 1 Wharton’s Am. Cr. L., 152. It will be seen that under article 9, p. 199, Rev. Code, the instructions in this case are much more.liberal to the defendant than he had a right to demand. Upon the issues presented by these instructions, the jury have found the defendant guilty. The testimony as presented by the record, is not very full, but these are cases peculiarly within the province of the jury. There were submitted to them, virtually, by the instructions, these questions : Was defendant one of the firm of Gathings & Co. ? Had he an interest in the whisky sold? Was whisky in a less quantity than one gallop sold in his house, by his consent? Was Burke a clerk or agent of Gathings & Co. ? Did he sell the whisky as such clerk or agent as a part of the business of Gathing & Co. with the consent, or concurrence of defendant ? To each and all of these questions, the jury, on their oaths, have answered in the affirmative, and we are not disposed to disturb their finding. There is sufficient testimony to sustain their verdict. Let the judgment be affirmed.