
    The State, v. D. Bierman and Claus Jacken.
    Though the mutual agency of partners m an unlawful transaction cannot bo implied, yet, if their stock in trade, the furniture and fixtures of the shop and the run of custom, indicate an unlawful trade, and this is confirmed by proof of a sale of spirits to a slave, by one of the partners, the jury may find the assent and guilty participation of the other.
    Pouring spirits into a jug in the presence of the slave who is waiting to take it? constitutes a sufficient delivery. It is a transfer of position.
    Tried before the Recorder, in the City Court of Charleston, May Term, 1846.
    This was an indictment under the Act of 1834, for selling, &c., liquor to a slave. The following testimony was given:
    
      Solomon Moses, sworn.—Knew the defendants in August, 1844: they lived at the corner of Lamboll and King streets; keep a retail grocery store. D. Bierman, witness thought the principal; regarded them as partners; was generally reported they were partners. Witness went, as marshal, with an officer, to arrest one of the parties; heard some one in a small room, (which witness described;) went as far as the door; was seized by the collar. Thinks Bierman was up stairs at this time; he came down. Saw Jacken pour out liquor (whiskey) into a jug, for a negro boy; the boy’s name was Limus, belonging to Mr. Peter Campbell; he escaped. Witness afterwards gave up the jug to Peter Campbell, as owner of the negro. One of the parties admitted that the jug belonged to the negro; Bierman stated he did not know any thing about it; there was a funnel in the jug; the jug was standing on the shelf; there was also another jug; liquors were kept there; saw barrels, &c.
    Cross-examined.—Witness believes the defendants were partners; there was a funnel in the mouth of the jug; Jacken had hold of the jug; the negro did not have the jug, he escaped without it; the liquor was poured into the jug from a measure; thinks it was all, or nearly all poured into the jug, when he first saw the transaction.
    Mr. Pressley argued the case on the part of the defendants, introducing no testimony.
    His Honor, the Recorder, submitted the case to the jury, with instructions, and they found both defendants guilty. The defendant, Bierman, appealed alone, and moved for a new trial, on the grounds:
    1st. That the question of the ownership of the jug being a material matter, in order to determine whether there was a delivery of the spirits alleged to be sold in this case, yet his Honor charged, that such ownership was sufficiently proved, by the jug having been claimed by Peter Campbell, and having been delivered to him by the marshal, although the defendant was not present.
    2d. Because his Honor ruled, that the fact of such claim and delivery was competent testimony.
    3d. Because there was no delivery of the spirits in this case.
    4th. Because, it is respectfully submitted, that his Honor erred, in charging that the defendant might be held responsible for the act of his partner, committed not in the presence of the defendant, if they could infer, from the circumstances, that it had the implied assent of the defendant.
    Pressley, for the motion.
    Bailey, Attorney General, contra.
    
   Frost J.

delivered the opinion of the Court.

The defendants were partners; and both were found guilty. Bierman alone appeals. The fact, that the marshal delivered the jug to Campbell, the owner of the slave, was competent evidence, though not very material; and is not necessary to support the verdict, since one of the defendants admitted it to be the slave’s. The pouring the liquor into the jug, in the presence of the slave, who was waiting to take it, was a sufficient delivery. It was a tranfer of possession.

Though the mutual agency of partners cannot be implied in an unlawful transaction, yet if one knew and sanctioned the act of the other, it would be the act of both. Proof of this may be inferred, as stated by the Recorder to the jury, from the nature of the business and the mode of conducting it, and all the circumstances of the transaction. If persons are associated for the purpose of illicit traffic, it is a very obvious, if not necessary conclusion, that each assents to what the other may do for the common profit. The character of the traffic may be proved by the stock in trade, the furniture and fixtures of the shop, and the run of custom. If these indications of an unlawful trade are confirmed by proof of a sale to a slave by one of the partners, the jury may find the assent and guilty participation of the other.

The motion is refused.  