#### The State *v.*Luder E. Bohles.

Upon an indictment against the defendant, the proprietor of a licensed grocery No. 3, in the City of Charleston, for selling liquor to a slave — the proof was, that the liquor was sold hy the clerk of the defendant, in his absence : and as far as it appeared by any *express*evidence, without his authority. The jury found the defendant guilty. Under the peculiar circumstances of the case — the clerk having been already punished for the same act — the court granted a new trial.

This case came up on an appeal from the City Court of Charleston. The report of his honor, the Recorder, is as follows: “ This was an indictment against defendant, for selling liquor to a slave. Henry Carminade sworn — testified that on the night of the 8th of October last, he saw two negroes sitting in defendant’s store: Ann, belonging to Mrs. Dupree, was going in at the time: *146stopped to see what she was going for: saw her take a phial out of her apron, and saw the clerk of *the*defendant pour liquor into the bottle, and she paid for it. Witness then went in and took the bottle, and asked the clerk if he had a -written permission to sell to this negro: denied that he had sold. The store of the defendant is at the corner of Archdale-street and Swinton’s lane. It is a license No. 3 grocery store: Schroeder is the name of the clerk: he has been clerk in this store at least six months previous tq the selling. On his cross-examination, he said defendant was not present, but came in immediately afterwards. It was about 8 o’clock at night. — This was all the evidence. I charged the jury, that as the defendant was not present, he could not be convicted, unless they came to the conclusion that the selling was with his permission and sanction; and of this they must be satisfied from the evidence before them. The jury found the defendant guilty.” The defendant now moves for a new trial, on the ground, “ That the verdict was manifestly against the evidence, as it was distinctly proved by the State that the defendant was not present when the liquor was sold to the slave, and that he knew nothing of the transaction.”

Curia, per Richardson, J.

The motion for a re-hearing before the jury in this case, is addressed to the judicial discretion of the law: and such discretionary authority should be exercised only upon a just and rational consideration of the facts. The evidence that the clerk sold .the gin to the negro slave without the permit of her owner was full, and he was properly convicted; and the same facts may raise a presumption that the clerk was authorised by the master of the shop, so as to implicate him in the act of selling the liquor ; yet we must allow, on the part of the present defendant, the consideration due to the principle of law — that one man is not amenable, *criminally,*for the acts of another, unless he has sanctioned them in some way. ■ Aind when we reflect that the selling by the clerk was a phial of gin only— probably for two or three cents — that he denied selling at all, and may have taken upon himself so trifling a liberty ; that the owner of the shop was himself absent at the time, and has béen in no *147way *otherwise*implicable in such *illicit*trading; that every charge of the hind against a shopkeeper supposes a dishonest practice of trafficking with slaves, which is highly disreputable; a majority of the court think that, in a case of such circumstances, and where the clerk has been already punished, a due regard for the legal principle before laid down, well warrants that the present defendant should have another opportunity of showing his own innocence. — A new trial is therefore granted.,,

*Phillips,*for the motion.

The *Attorney General,*contra.

Gantt, O’Neall, Evans, and Butlek, Justices, concurred.