Do anything well, and there will be envy.
Hugh McCaffrey was sued over a short measure in potatoes. Who knows how much money, time, and effort was put into sending the case to the Indiana Supreme Court, but the recuperation for actual damages could not have been more than a few cents, even in our day. Anyway, we are famous, and wound up in the reporting dockets of the annual register.
Hugh was fabulously successful, and the competition was not happy.
At its height, the grocery business, (not counting his milling company) extended to 5 locations around the state, including Kokomo and Michigan City.
(181 Ind. 200)
State v. Mccaffrey. (No. 22,393)
(Supreme Court of Indiana. Jan. 8, 1914.)
1. Criminal Law (§ 763)—Trial—Question for Jury.
Where there is no evidence authorizing a verdict for the state, a charge directing a verdict for defendant is not error.
2. Weights And Measures (§ 12)—Criminal Prosecution—Question For Jury.
The proprietor of a store must know that no false weights or measures are being used in his business, and where, in a prosecution for the sale of potatoes by short measure, there was some evidence from which it might be inferred that defendant was the owner of the store in which they were sold, the question of his knowledge of or connection with the sale was for the jury.
Appeal from Circuit Court, Miami County ; Joseph N. Tillett, Judge.
Hugh McCaffrey was prosecuted for selling potatoes by short measure. Verdict ordered for defendant, and the State appeals. Sustained.
Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, Deputy Atty. Gen., for the State. David E. Rhodes, of Peru, for appellee.
ERWIN, J. This was a prosecution against appellee on an affidavit filed in the circuit court, in which it was charged that appellee, through his agent and servant, sold to one Fred Rayburn a quantity of potatoes represented to be a peck, when, in truth and in fact, it was less than a peck. A trial was had and evidence heard on the part of the plaintiff and the defendant. At the close of the evidence the defendant moved the court for a peremptory instruction to the Jury to acquit the defendant on the grounds "that no evidence in the cause showed proof of all the elements necessary to constitute an offense under the law, and for the further reason that the defendant has in no manner been connected with the offense charged, or that he had any knowledge or connection in any manner with the act charged," which motion was by the court sustained, and a verdict for the defendant was ordered by the court. The action of the court in sustaining said motion is assigned here as error by appellants.
In view of the insistence of the attorney for the appellant that the court erred in directing the verdict for the defendant, we have examined and read in its entirety the bill of exceptions containing the evidence. In the evidence of John Owen Fisher, the party from whom the state claims the potatoes were bought, appears the following:
"Q. What is your employment, if you have any?
A. My employment—manager of the department store.
Q. State to the court what department store it is you are manager of.
A. McCaffrey & Co.
Q. I will ask you, Mr. Fisher, if this is Hugh McCaffrey whom you manage his store?
A. Yes, sir.
In the further examination of John Owen Fisher, and as a part thereof, there was introduced in evidence, by agreement of parties, a bag used for wrapping goods at the store in question, containing the following:
"'McCaffrey & Co. Department Store.' * * * Every purchase guaranteed satisfaction or your money refunded."
Further on in the examination of Harvey G. Boyd, the prosecuting witness, by Mr. Bailey, the attorney for appellant, this question was put to the witness:
"Mr. Boyd, when you found that the measure in the room of McCaffrey & Co., you have testified that you knocked the dents out of it and tested it?"
Appeal sustained.
[1] Where there is no evidence authorizing a verdict for plaintiff, a charge directing a verdict for defendants is not error. State v. Julian, 93 Ind. 292; Jennings v. Ingle, 35 Ind. App. 153, 73 N. E. 945; Haughton v. iEtna Life Ins. Co., 165 Ind. 32-43, 73 N. E. 592, 74 N. E. 613, and cases cited; Wamsley v. C, C. & St. L. Ry. Co., 41 Ind. App. 147, 82 N. E. 490, 83 N. E. 640.
[2] The proprietor of a store must know that no false weights or measures are being used in his business, and in failing to do so must suffer the penalty.
There was some evidence from which the inference could have been properly drawn that Hugh McCaffrey was the owner of the store in which the potatoes were bought, and this question should have been submitted to the jury, and the court erred in instructing the jury to return a verdict for the defendant. '
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