
    State of Indiana v. McCaffrey.
    [No. 22,393.
    Filed January 8, 1914.
    Rehearing denied February 4, 1914.]
    1. Trial. — Directing Verdict. — Where there is no evidence authorizing a verdict for plaintiff, a charge directing a verdict for defendant is not error, p. 201.
    2. Weights and Measures. — Criminal Prosecution. — Directing Verdict. — The proprietor of a store must know that no false weights or measures are being used in his business, and where, in a prosecution for the sale of potatoes by short measure, there was some evidence from which the inference could have been properly drawn that defendant was the owner of the store in which the potatoes were bought, an instruction directing a verdict for defendant was erroneous, p. 202.
    Prom Miami Circuit Court; Joseph N. Tillett, Judge.
    Prosecution by the State of Indiana against Hugh Me Caffrey. Prom a judgment of acquittal, the State appeals.
    
      Appeal sustained.
    
    
      Thomas M. Honan, Attorney-General, and. Thomas H. Branaman, for the State.
    
      David E. Rhodes, for appellee.
   Erwin, J.

This was a prosecution against appellee on an affidavit filed in the circuit court, in which it was charged that appellee through his agent and servant, sold to one Pred Rayburn a quantity of potatoes represented to be a peck, when in truth and in fact it was less than a peek. A trial was had and evidence heard on the part of the plaintiff and the defendant. At the close of the evidence, the defendant moved the court for a peremptory instruction to the jury to acquit the defendant on the grounds “that no evidence in the cause showed proof of all the elements necessary to constitute an offense under the law; and for the further reason that the defendant has in no manner been connected with the offense charged, or that he had any knowledge or connection in any manner with the act charged,” which motion was by the court sustained and a verdict for the defendant was ordered by the court.

The action of the court in sustaining said motion is assigned here as error by appellant. In view of the insistence of the attorney for the appellant that the court erred in directing the verdict for the defendant, we have examined and read in its entirety the bill of exceptions containing the evidence. In the evidence of John Owen Fisher, the party from whom the State claims the potatoes were bought, appears the following: “Q. What is your employment, if you have any? A. My employment, manager of the department store. Q. State to the court what department store it is you are manager of. A. McCaffrey & Co. Q. I will ask you Mr. Fisher if this is Hugh McCaffrey whom you manage his store? A. Yes, sir.” In the further examination of John Owen Fisher, and as a part thereof there was introduced in evidence, by agreement of parties, a hag used for wrapping goods at the store in question, containing the following. “McCaffrey & Co. Department Store. * * * Every purchase guaranteed satisfaction or your money refunded.” Further on, in the examination of Harvey G. Boyd, the prosecuting witness, this question was put to the witness by Mr. Bailey, the attorney for appellant, “Mr. Boyd, when you found that measure in the room of McCaffrey & Company, you have testified that you knocked the dents out of it and tested it ? ”

Where there is no evidence authorizing a verdict for plaintiff, a charge directing a verdict for defendant is not error. State v. Julian (1883), 93 Ind. 292; Jennings v. Ingle (1905), 35 Ind. App. 153, 73 N. E. 945; Haughton v. Aetna Life Ins. Co. (1905), 165 Ind. 32, 42, 73 N. E. 592, 74 N. E. 613, and cases cited. Wamsley v. Cleveland, etc., R. Co. (1908), 41 Ind. App. 147, 82 N. E. 490, 83 N. E. 640.

The proprietor of a store must know that no false weights or measures are being used in his business, and on failing to do so must suffer’ the penalty. There was some evidenee from which the inference could have been properly drawn, that Hugh McCaffrey was the owner of the store’in which the potatoes were bought, and this question should have been submitted to the jury and the court erred in instructing the jury to return a verdict for the defendant.

Appeal sustained.

Note. — Reported in 103 N. E. 801. See, also, under (1) 38 Cyc. 1570; (2) 40 Cyc. 887. As to what is deemed to be invasion by the court of the province of the jury, see 14 Am. St. 30.  