#### The State vs. H. L. Williams.

Tried before his Honor Judge Richakdson, Marion, April Term, 1836.

This was an indictment for retailing spirituous liquor. The witness stated that the act of retailing was committed at the store of the defendant, by his clerk, <fcc. &c. who sold a pint of rum to the witness in August last, without stating *where*.the store was situated. The defendant was himself not present at the time. The objection taken, was, that the store may have been out ¿Í the jurisdiction of this court, and not in Marion district.

I charged the jury, that whether the store of the defendant was within Marion district, or out of it, was an inference of fact for them to decide. That it was not indispensably necessary for the witness' *95to have said, in so many words, it is within the district; if the truth were so, it is enough *;*and if the jury knew the place described, to be within the district, that was enough. For example : If the *locus in quo*had been Gilesborough, it would not have been necessary for the witness to have added, Gilesborough is in Marion district. But the jury must be first satisfied, that the store of defendant was, in fact, within the district, before they convicted the defendant. The verdict found the defendant guilty, and he appeals on the following ground ;

That his Honor, the presiding judge, erred in charging the jury, that, though the store of defendant, where the selling took place, was *not proved to*be in the district of *Marion,*they might infer that fact from any facts *within their*knowledge which would lead to it.

J. S. RICHARDSON, *Presiding Judge.*

*Additional Ground.*— That there was no evidence of *any*selling by defendant *personally,*but only that his clerk sold, without proving that it was done by defendant’s authority.

P. S. The additional ground required me to report further, that the question, whether the retailing by the clerk, implicated the defendant, and rendered him guilty, by reason of his implied authority to the clerk to retail, was left to the jury, as an inference from the facts' proven, within their competency ; and they, alone, were to decide the question.

J. S. RICHARDSON.

To the Honorable the Judges of the Court of Appeals.

It is a general rule of law, that all *material*averments in an indictment, must be proved, particularly, those which are necessary to enable the parties to avail themselves of the verdict and judgment, should the same charge be again brought forward. 2d Russell on Crimes, 704. 1 Chitty’s Crim. Law, 557.

The reason of the rule is so self-evident, that it is unnecessary to argue it. Now, it seems to me, that the *venue*in an indictment for retailing liquors without a license, is an important allegation, for if not necessary to state the district in which the unlawful retailing was done, then the defendant might be indicted for the same offence, as often as the malignity of the prosecutor might dictate. It will not, however, be denied, that it is necessary to specify the district in which the offence was committed, and it then follows from the rule laid down, that it is *necessary to prove the allegation.*The defendant may have a store in each of several districts, and because one of them may be located in the district, in which he was arrested and tried, the jury have no right to presume that the offence with which he is charged, was committed at that one. Men are to be convicted upon facts, and not presumptions.

The second ground requires no argument, as the question has al*96ready been decided by the supreme judicial tribunal of the State# State vs. Borzman, 2d Nott and McCord, 34.

I will here close, with a single remark, that by reference to the judge’s notes accompanying his report of the case, it will be found that there was but *one*act of selling proved ; that, that selling was by the clerk in the absence of the defendant, and that on a former occasion defendant refused to sell. ’

SOLOMON COHEN, *For Appellant.*

Georgetown, April, 1836.

*Argument in Reply.*

1. The witness stated, I understand, that the retailing tools; place nt “ William’s store.” *Places*are sometimes designated by the names of those residing at them, — As “ Rumph’s Cross Roads,” “ Colin’s Bluff.” So a store situated in the country, sometimes gives the name to that part of the country. The jury have a right to infer from the description and name, -whether the store is in the district or not. Suppose the retailing had been proved to have taken place in Georgetown, would it have been necessary to have proved that Georgetown was in Georgetown district.

2. The second ground is more formidable. It is determined in the case of the State vs. Borzman, that the retailing of the clerk will not be considered as the retailing of the employer. But the decision is qualified as follows : *“*It is considered,” (said the judge, 2 N. and M’C. p. 35,) *“*that circumstantial evidence, for instance, *the character or system of doing business,*or *even the business generally done in the store,*forms practices or directions to other agents employed, — these and the like would be received, from which to infer, that the master directed or assented to the crimiual act.” Now, in this case, I understand, that it was proved that the defendant was in the habit of retailing liquors, and'-.hat he had not taken out a license for several years past. But, however strong this case may be, it will be seen by re--ference to it, that the bench was divided upon it, and that it was de. termined by a bare majority. Colcock being absent, and Judges Gantt and Bay dissenting, and Nott not concurring in the reasons, I would submit anew to the court, the question, whether the jury have not a right to infer that the clerk retails with the consent of his employer, when the store and its profits are the employer’s; and from its situation in the country, and the habits of the people who deal with the employer, it is clear, that without retailing liquors, *the store could*not be supported.

SMITH, *Attorney General.*

Mr. Justice 0’Nbau,

delivered the opinion of the court.

Upon the first ground of appeal, we concur in opinion with the judge below. To his observations, it is only necessary to add an authority directly in support of them. In Trials per Pais, 334, it is laid' down as a settled rule, that “the jury may give a verdict without tes-*97fimony, or against testimony, when they,- themselves,- have conusance of the fact.”

Filed 10th May, 1836.

On the second ground, we think a new trial must be granted.- There is only a single act of retailing proved : that was by the defendant’s clerk,- in his absence, and after he, the defendant, had refused to sell to the witness. From a single isolated act of retailing by the clerk, no certain inference, that it was by the authority of the defendant, could be drawn ; but whatever probability that it might have been so, is negatived by his previous refusal to sell. To authorize the jury to convict, it ought to be shewn, that it was the usual course of business, at the defendant’s store, to retail. When this was done, the act of the clerk would be the act of his principal.

The motion for a new trial is granted.

JOHN B. O’NEALL.

We concur,

HENRY W. DESAUSSURE,

JOSIÁH J. EVANS,

WE HARPER,

J. JOHNSTON.

B. J. EARLE,