Opinion
1832.
Jury discharged on account of the illness of prisoner.
On the trial of Clarkson for larceny he was taken ill; and the court, after the jury had agreed on their verdict, declined taking it and discharged the jury, believing that during his trial the prisoner was, from illness, not in a situation to judge of, or attend to his interests. State vs. Clarkson. Kent, 1833.
A shopkeeper is liable to indictment for his clerk's selling liquor by the small, with his knowledge or permission. He is liable for selling a quart, and delivering it at different times.
The defendant was indicted for selling spirituous liquor by a measure less than a quart. The liquor was bought of his boy, who attended the store. Ruled, that if the boy sold it in the usual course of business of the store, or by the general knowledge or permission of the owner (which may be inferred,) the owner is liable criminally; as in misdemeanors "qui facit per alium, facit per se."
Ruled also, that purchasing a quart, taking a part of it and leaving the rest floating in the cask until another time, is a fraud and evasion of the law, and is a retailing by a less measure than a quart. State vs. Burchinal. Kent, October Sessions, 1833.