
    G. W. Gathings v. The State.
    1. Indictment — Practice—Verdict.—Several persons indicted jointly maybe tried separately, at the option of the state; and in an indictment against two or more, where the ehargos are joint as well as several, one may bo convicted and another acquitted by the jury, and judgment rendered accordingly. But whore several persons are jointly indicted and convicted, the sentencomust bo several, and the imposition of a joint fine would be erroneous.
    2. Evidence — New rule oe, by statute — Verdict.—The 9th article of the Bev. Code, 199, is held to introduco a new rule of evidence in the trials of those indicted for violation of its provisions; and where partners are jointly indicted under that article, they may be convicted and punished, although one of them may have been wholly ignorant of the illeagl act, each being responsible for the illegal act of his copartner whether he participated in it or not.
    3. Pbactice — Retailing—Knowt-edge ob assent_There is no partnership in crime, and hence it is not necessary to allege, in the indictment, that several committed an offense as partners. So, under this statute, it is immaterial whether the liquor 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.
    Error to the circuit court of Monroe county. Beadeord, J.
    The plaintiff in error assigned the following errors’:
    1st. The court erred in admitting the testimony of Win. McMillan to go to the jury.
    2d. The court erred in excluding that" portion of the testimony of Geo. 0. Coleman, elicited upon cross-examination by defendant.
    3d. The court erred in giving the charges asked for by the State.
    4th. The court erred in refusing charges asked for by the defendant.
    5th. The court erred in overruling motion of defendant for a new trial.
    6th. It was error to try plaintiff in error before the cause was at issue, or was disposed of as to said Weaver and Burke, and error to try him separately.
    
      Geo. L. Potter, for the plaintiff in error.
    The judgment should be reversed, because,
    1st. The indictment was against three jointly, plaintiff, Wéaver and Burke and there was no order for a separate trial, and no issue as to Weaver and Burke. It was error in such a state of case, to try the plaintiff in error separately j and leave the cause still pending as to the other defendants.
    2d. The evidence does not justify the verdict. The indictment was,for selling less quantity than one gallon. The only proof of sale is by McMillan, who bought “ a bottle of whis-ky,” etc.; and the only proof of quantity is to be found in that one word, “ bottle.” The witness bought a bottle of whisky,” but in so buying, did he purchase “ less than one gallon?” There is no proof as to quantity. The size or capacity of “ a bottle ” cannot be known, but must be proved. Webster defines “ a bottle ” to be “ a narrow mouthed vessel for liquor,” and thus shows that the words indicate form, and not capacity.
    3d. It was error to exclude the testimony elicited on cross-examination of Coleman. The only act of selling spirits in the house was done by one Burke. It was not proved that Burke was a partner of Gathings, and the only evidence to show he had anything to do with the store, is the statement of McMillan, who found Burke behind the counter and bought the whisky and “ some other articles,” from him, in the absence of this defendant. It was necessary to prove that Gathings was criminally responsible for this act of Burke. To do this, the state must show that Burke was clerk or agent of Gathings, and sold the liquor, “ by his consent or connivance,” as stated in the first instruction for the state; or sold the whisky t£ as a part of the business of his principal” (Gathings), as stated in the second instruction. In view of such instructions, it is apparent how important was the excluded testimony. They sought to infer the consent or connivance of the defendant in the sale of a single bottle of whisky, and to raise a presumption of his “ concurrence or consent,” from the alleged fact that Burke made the sale “ as a part of the business ” in which he was employed by defendant. The excluded evidence showed that the store was “ a dry goods house,” and not a liquor store.
    4th. There was no evidence to prove the charge made in indictment. The charge is a joint sale by three, and must be proved as laid, but is not proven. Mor is it shown that Gathings authorized or consented to the sale; a charge of crime cannot be sustained on such meagre proof.
    5th. The first charge for the state is erroneous. It asserts that defendant is guilty, if the liquor “ was sold in his house by his consent or connivance.” It leaves out of view the important questions whether the liquor belonged to defendant or his firm, and whether Burke sold for either of them. If Burke owned and sold the liquor on his own account, and not for defendant or Ms firm, the defendant would not be liable under this indictment, even though the sale was in his house and with his consent; for it would not in any sense, be a sale by defendant.
    6th. The second charge in the alternative form in which it Avas presented, is clearly erroneous.
    7th. The court erred in refusing the charge asked for defendant. Defendant was charged with selling whisky without license, and surely he was not guiliy, if he “ did not sell the Avhisky himself as charged,” and “ did npt authorize any one to make such sale for him.
    8th. For like reason, it was error to refuse the other charge. Defendant was not guilty if his firm did not make sale, and if he did not make, nor consent to the sale.
    
      ■J. & Morris, attornejr-general.
    It is wholly immaterial whether Burke, Avho is proved to have sold the Avhisky in the defendant’s store, was at the time a copartner or a mere employee. Coriimonwealth Ar. Nichols, 10 Mete. Mass., 259; Commonwealth v. Park, 1 Gray, Mass., 553 ; Commonwealth v. Bag-ley, 7 Pick., 279; 1 Wharton’s Or. Law, § 594.
    The statute under which this indictment proceeds, by express words, applies to “ any person who may own or have any interest ” in the liquors sold. And see Whitton et al. v. State, 37 Miss., 379.
    As to Avhether the “ bottle of whisky,” proved to have been sold in defendant’s store, was “ less than one gallon,” is merely a question of “fact,” tobe decided by the jury, and the jury have decided that it was. In so deciding, they doubtless gave to the phrase “ a bottle of Avhisky, ” its “plain, natural, obvious and ordinary signification;” and this was manifestly their duty under the laAv. See Bouvier’s L. Diet., title: “Construction;” Kev. Code of 1857,643, art. 1.
   Tabbell, J.:

At the February term of the Monroe county circuit court, 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 (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 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 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 concealment, 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.  