State v. Wheat

292 P. 793, 131 Kan. 562, 85 A.L.R. 1412, 1930 Kan. LEXIS 366

Opinions

The opinion of the court was delivered by

Dawson, J.:

The defendants, mother and son, were convicted on ■two counts for violations of the prohibitory law.

- The state’s evidence tended to show that the mother owned and personally conducted a drug store in the little town of Zenda, in Kingman county. Her son, a lad of seventeen, who was a student in pharmacy, assisted her in its management. They employed several clerks to assist in selling goods to customers during the Christmas season. Among the articles of merchandise kept for sale and sold by defendants was a certain bottled decoction named California Padres Wine Elixir. The state’s evidence tended to show that it contained 25 per cent of alcohol and was intoxicating; that deliveries of three and four cases of this elixir were made at defendants’ drug store every few days; that many empty bottles which had contained this elixir were scattered along the roads leading out of Zenda; and that a local toper was accustomed to use it as a beverage, and that his daughter had protested to one of these defendants against its sale to him.

Defendants’ first objection to the judgment is that it was error to permit evidence to be introduced touching the fact that John Schulte, a local toper, was drunk at his home on August 10, 1929. It is insisted that his intoxication was caused by drinking another decoction called “Midco,” which he had procured elsewhere than at defendants’ drug store in Zenda. But it was also shown that on that date Schulte drank a portion of a bottle of California Padres Wine Elixir, and the evidence was competent — not to prove a sale to Schulte by defendants, but to prove that this elixir was used and usable for beverage purposes. The evidence introduced to show that frequent deliveries of cases of the elixir were made at defendants’ drug store likewise was competent to "show that there 'was a big demand for it by defendants’ customers, and the many empty bottles scattered along the public road and on premises near the drug store were competent and persuasive evidence that this California Padres Wine Elixir was familiarly and widely used as a beverage in that locality. (State v. Kane, 114 Kan. 426, 219 Pac. 281.)

Error is also assigned on the instruction given and refused. Those given told the jury that it would not be a defense on the part of defendants if the particular sales for which they were prosecuted had in fact been made by their clerks or employees, and that it would not be a defense if the sales were made without their knowledge that the purchasers intended to use the elixir as a beverage. The requested instructions which the trial court declined to give would have told the jury that if the sales were made in good faith and without knowledge on the part of defendants that the elixir was to be used as a beverage defendants would not be guilty of violating the prohibitory law. The instructions given correctly stated the pertinent law and the requested instructions did not. The statute does not say, and this court has never intimated, that a vendor of intoxicating liquor would be exempt from the pains and penalties of the crimes act if he did not know that the purchaser intended to use the liquor for beverage purposes. Our repeated decisions are to the contrary. (State v. Moulton, 52 Kan. 69, 34 Pac. 412; State v. Rennaker, 75 Kan. 685 and citations, 90 Pac. 245; State v. Ilgner, 81 Kan. 203, 105 Pac. 14. See, also, State v. Miller, 92 Kan. 994, 142 Pac. 979, and State v. Kane, 114 Kan. 426, 219 Pac. 281.)

Neither can defendants escape criminal liability on the mere ground that the particular sales for which they were convicted may have been made by their clerks or employees. Over fifty years ago this court held that where a clerk of a druggist authorized to sell the merchandise kept for sale by his employer, sold intoxicating liquors as such clerk, the druggist was liable for such act of his clerk, and was properly prosecuted, convicted and fined for a violation of an ordinance. (City of Salina v. Seitz, 16 Kan. 143.) See, also, State v. Skinner, 34 Kan. 256, syl. ¶ 7, 8 Pac. 420; State v. Falk, 51 Kan. 298, 32 Pac. 1132. In 33 C. J. 606 the rule, supported by many citations, is thus stated:

“To sustain a conviction under the liquor laws, it is not always necessary to show that the illegal sale, or other act, was the personal act of defendant, or was done in his presence, for he may be guilty if it was done in his interest and behalf, with his authority or consent, by persons in his employment or under his control.”

See, also, exhaustive note on criminal liability of master for acts of servant in 43 L. R. A., n. s., 2-44.

Another complaint of defendants pertains to certain evidence given by the city marshal, who testified:

“A. Well, I saw some boys come in [to defendants’ drug store] and order something and they wrapped it up in paper and it was handed to them.

“Q. Where did the man that handed it to them get it from? . . . Did ho reach up on the shelf, or where? A. Why, I didn’t see him take it from the shelf, but I think so, he was behind the counter — it was behind the counter.

“Q. How did the man hand it to him? A. Well, he wrapped it up and then handed it to him around the counter.

“Q. Did he hand it over the counter? A. No. . . .

“A. Well, I saw some [boys] come out of there that had something wrapped up in paper. I didn’t know what it was.

“Q. What size paper would it be? . . . A. Oh, it was about the size like these bottles are here.”

It cannot be positively declared-that this evidence had no probative value, particularly on the nuisance count for which defendants were also being prosecuted. But even if it were held that the testimony was entirely without competent, probative value, this court would be bound to hold that its introduction was quite immaterial and nonprejudicial.

Defendants next press on our attention a certain incident which occurred after the jury had deliberated on their verdict for several days. The cause had been submitted to the jury on a Tuesday evening and they began their deliberations the following morning. They continued in session all that day, that night, and the next day until 6 p. m., when they were excused until Friday morning. The jury then reconvened and continued their deliberations all.that day, that night, and Saturday until 2:40 p. m., at which time the court called the jurors into the jury box and asked if they had agreed upon a verdict. Receiving a negative reply, the presiding judge said he could not see why this jury could not determine the case as well as any other jury, that one witness had come from' Washington, D. C., and he then asked the jury if they were trying to determine this case according to the law and the evidence offered on the witness stand. The jury foreman said they were. The court then stated, in substance, that the street talk was that this jury would not convict, because a lot of other folks had been selling the same kind of booze. The foreman said the jury had been trying to stay within the law and the evidence. The court then stated, in substance, that it was not the policy of the law to let any outside influence interfere with the deliberations of the jury. The jury were then directed to retire with their foreman, and as they were filing out of the jury box the attorney for defendants addressed the court and objected to the remark of the court about other persons selling the “same kind of booze” as prejudicial. About an hour later the jury were brought again into the jury box and after a question in respect to another matter had been answered, the court said:

“After the jury returned to the jury room a little while ago counsel for che defendants objected to some of the statements made by the court to the effect that the court called the contents of these bottles booze. Perhaps the objection was well taken. The court should have said California Wine, or whatever the correct name is. By using the word ‘booze,’ the court didn’t intend to indicate that the contents of these bottles was intoxicating and the jury will so consider it. You may retire for further deliberations.”

Defendants contend that this incident and the remarks of the trial judge about the “street talk” and “same kind of booze” were highly prejudicial and tended to coerce the jury into finding a verdict against defendants; and that the error was not cured by the court when it later advised the jury of the objection of counsel to the court’s reference to the elixir as a kind of booze, and that “perhaps the objection was well taken.”

The court’s observation to the jury, coming as it did after it had unsuccessfully labored for nearly four days to reach a verdict, was not very discreet; and in this, appeal it furnishes a plausible talking point that it was bound to constrain the jury to return a verdict of guilty whether intended to have that effect or not. After mature reflection this court is not inclined to attach so much importance to what was obviously a mere casual observation; and as the court recalled the jury shortly afterwards and told them of defendants’ objection to it and sustained that objection and expressly disávowed any purpose to influence their verdict, this court cannot discern any prejudicial consequence which can be traced to the court’s utterance. If this record provoked in the minds of this court any doubt about the guilt of defendants — but it does not — the incident just discussed would present a graver question, but under the admonition of the criminal code which forbids the disturbance of verdicts and judgments for nonprejudiciál irregularities (R. S. 62-1718) the present judgment will have to stand.

The judgment is affirmed.