August Elsner v. The State, 30 Tex. 524

Caldwell, J. It is objected that the indictment charges “two offenses,” and is vague, defective, &e. The first count charges that the defendant, on “Sunday,” &c., “ did engage in the sale of spirituous and intoxicating liquors to Rufus Green,” &c. The second count, “ on the day and year last aforesaid,” the defendant was a “ grocer,” and did then and there on Sunday trade lager beer to Rufus Green. The object of the legislature was to forbid all secular employments on the -Sabbath not excepted in the act under which the defendant is indicted.

The disregard of the Sabbath, the refusal to recognize it as a day sanctified to holy purposes, constitutes the offense. The particular act alleged is' no offense, but becomes so only when done on the' Sabbath. The indictment we think amply sufficient to hold the défendant to answer. The offense is charged in the language of the statute. (21 Tex., 280.) On the trial, John Scott, a witness for the state, testified that he and others went into the saloon of defendant and called for lager beer, and young Eisner let them have it.

After drinking, young Eisner was asked the price of beer, and stated that it was worth 40 cents a quart. To this it was replied, that it was too much. The party laid down 20 cents on the counter and then left. The witness further said, that he had frequently seen young Eisner behind the counter attending to customers. To all of which defendant objected, on the ground that he was not present when the transaction occurred. Objection overruled.

We think that a young man, standing behind the counter of bis father, dealing with his customers, may, without any violent presumption, be regarded as a clerk or agent, and the father and proprietor held responsible for his acts in the line of duty. It was in proof by three other witnesses that the defendant in person sold liquor as charged. It will be observed that the defendant kept the front door closed, but without difficulty access could be had through his private house to the tap-room. This itself is suggestive of any other than a pious intent.

Defendant proved by sixteen witnesses, who had frequented his house, that they never knew him to engage in selling on the Sabbath. On that day his counter was free, “without money and without price.” ' This certainly evinces much liberality, and we doubt not that so generous a man could have increased the number of his witnesses. But the affirmative testimony of the three gentlemen is controlling and decisive. Judgment aeeirmed.