CONCURRING OPINION.
GRAY, J.On the authority of State v. Burns, 140 S. W. 871, the defendant’s guilt “was established by his own testimony. It is not claimed that in ordering the beer he did so in the name of all the persons who had contributed to the purchase fund, or that he notified the seller that such others were interested in the transaction. The Burns case holds that when one person purchases liquors for another, he must give to the seller the name of such other, and a failure so to do makes the order for the liquor an unlawful one, and the person acting for the true buyer guilty of nnlawfully keeping such liquor all the time he has it in his possession.
*417In the Burns case, the defendant lived in Mt. Vernon, and was going to make a trip to another town. As he was about to start, his neighbor asked him to buy for him a pint of whiskey, and gave the .defendant the money therefor. The defendant took the money, purchased the whiskey and brought it home with him and kept it in his house over night, intending to deliver it the next morning but before he did so he was arrested on a charge of unlawfully keeping intoxicating liquors.
The Supreme Court said that under such a state of facts the defendant was guilty, but if he had informed the seller that he wanted the whiskey for his neighbor and not for himself, he would have been innocent. In other words, if the defendant'had said to the seller, “My name is Prank Burns. I live at Mr. Vernon, Mo., and have a dollar that was given to me hy Mr. Alex Hixon, also of Mt. Vernon, Mo. This money was given to me by Mr. Hixon to purchase for him, the said Alex Hixon, one pint of whiskey. You will wrap up the whiskey and carefully mark the package for Mr. Alex Hixon, of Mt. Vernon, Mo., and make a note of the transaction,” he would have been innocent.
The reason for this formality is given by the court in the following language: “The statute, however, contemplates, that the buyer shall deal in his own name with the seller, and that the seller shall send the whisky directly to the buyer, knowing to whom he is sending it. It is important that the transaction should be. between the one who orders for his own use and the dealer who fills the order. Otherwise one could traffic in whisky in defiance of the statute by securing his customers and payment in advance, then buy the whisky in his own name, deliver it to his respective customers and, if charged under the statute, say, ‘I was merely a messenger for persons who ordered for their own use.’ ”
*418Did the court mean to say that a person can solicit orders for intoxicating liquors from a large number of' persons, and then take his conveyance and go to some other place where it is lawful to sell liquors, and hand the list of names to the seller and procure the goods thereon, and take the same and deliver them to the different persons and collect his commission and escape the penalty of the statute? If this is the law, then surely the “boot-legger” may carry on his odious and nefarious business at his will, and without fear of prosecution or punishment. It seems to me the court should look through the shadow into the substance and determine whether the act is criminal or innocent by its character, and not by the mere words used in performing it.
I think the defendant in the Burns case was innocent, if he acted in good faith and merely to accom modate his neighbor, whether he informed the seller of his agency or not. On the other hand, I believe he was guilty if he was really engaged in dealing in intoxicating liquors, and that it would have been no defense to prove that he told the seller he wanted the whiskey for his neighbor.
Under the statute, a druggist has the right to sell wine for sacramental purposes. Suppose the officers of a church desired wine for such purpose, and one of them applied to a druggist for wine, and the same was sold and delivered to him, but he failed to tell the druggist the names of the members of the congregation he was purchasing it for, would any court hold he was guilty of unlawfully storing, and keeping intoxicating liquor during all the time he had the wine in his possession, and waiting for the time to arrive when it was to be used?
While Judge Cox in the majority opinion, justifying the action of the court in overruling the demurrer, has properly set out the testimony against the defendant in its strongest light, and has drawn all the infer*419enees that a jury would have a right to draw in favor of the state, yet there are many circumstances which tend to prove that the defendant was not guilty of any intentional wrong, and many of the circumstances pointed out by Judge Cox were denied by him or explained in a manner consistent with innocence, when we leave out of consideration the Burns case.
The defendant testified, and was corroborated by the state’s witnesses, that from time to time, for a period of two years,-previous to his arrest, he and his friends had made up a purse and sent to Rolla for beer; that first one and then another attended to collecting the fund and making the order. The different names on the empty cases found in the basement at the time of the arrest, were accounted for in this manner, and fully corroborated the defendant’s testimony.
The defendant also testified, and was not contradicted, that the large number of empty bottles in the basement was due to the fact that they were allowed to accumulate for several months as the dray-man would not come after them or the empty cases until there was a sufficient quantity to justify the special trip. The fact that the beer was kept locked in the cupboard and trunks, was accounted for on the theory that the boys had been missing some of the bottles of beer, and they were satisfied that they had been taken by persons who had no interest in them, and therefore, they arranged to keep it locked, so that no one, except the owners, could have access to it. The large quantity of beer on hand was accounted for by the defendant and the state’s witnesses also. The testimony showed that an order had been made for beer, but the river between Rolla and Salem had been up so as to prevent a delivery over a certain route, and the boys made another order for eight cases to be shipped by express and without cancelling the first one. While the orders were made about ten days apart, and the shipments were made at different *420times, yet they both arrived about the same time, and the beer that came in the cases was taken out and put in the trunks and locked up, and a part of the empty cases found in the basement were the ones used in making these shipments, and from which the beer had been taken that was found in the trunks and locked.
The defendant testified that no one had been permitted to have any of the beer unless he was one of the common owners-thereof, and it may be said that the state made no attempt to prove that any beer had been sold by the defendant to any one. The testimony wholly failed to show that the defendant had gone to any expense or trouble to procure the counter or cupboard that were found in the basement. In fact, it was not claimed by the state that the counter was not an old one that had been stored in the basement.
It is intimated in the majority opinion that the defendant might have been keeping the beer for the profit he was making on his boarders. The evidence discloses that but one boarder ever had any interest in the beer, and it seems to me that it is a far-fetched assumption to say that the defendant may have been engaged in a business that would render him liable to a fine and imprisonment for the profit he might realize from one boarder.
There was no real conflict in the testimony, and when the transactions are fairly considered, it may well be said that the defendant and his associates were doing what has often been done in all parts of the state, to-wit: Making up a purse and sending for beer, and having it delivered at some convenient place where the owners have access to it from time to time. I adroit there were some inferences to the contrary, but the Constitution of this state guarantees to a citizen the right of trial by jury. As said by Judge Cox in Bank v. Redfearn, 141 Mo. App. 386, 125 S. W. 224: "The right of trial by jury is one of the sacred *421institutions of our law, and it is the duty of the court to preserve it under all circumstances, and no matter how clear the testimony may he, or how strongly the court may he convinced that deception and fraud have been practiced, yet the law does not permit him to take from the jury the right of determining that matter.”
If the defendant’s testimony was true, then when the boys were clubbing together and ordering the beer, and having it shipped and delivered at defendant’s basement, and there used by them, their right to do so was expressly recognized by the highest judicial authority in this state. On the 30th day of June, 1910, the Supreme Court, in. an opinion by Judge Gantt, and reported in 129 S. W. 650, construed the statute under which this defendant is prosecuted, and held that its provisions were limited to transactions by order houses. On May 17, 1910, the St. Louis Court of Appeals, in State v. Boehler, 148 Mo. App. 614, 128 S. W. 518, speaking through the presiding judge of that court, and construing the same statute, said: “The obvious intent of section 2 is to prevent any person acting as a keeper of what were known as ‘order houses.’ ”
The witness, Bert Organ, on whose testimony the defendant was convicted, testified that in September, 1910, he and the defendant ordered, together, a case of beer; that by common consent it was delivered at the basement of the defendant’s hotel, where it was kept until the owners drank it. Under the decision in the Burns case, this testimony justified the conviction in this case. Now it is perfectly clear that if the defendant or Organ had consulted any reputable attorney in this state, he would have been advised that there was no law in this state making such act a crime, and the attorney would have cited the decision of the Supreme Court as his authority.
*422While the Constitution- of this state expressly provides that the Legislature shall not make an act an offense which was not at the time it was committed, yet the same thing is accomplished when a man does an act, the legality of which is expressly recognized by the Supreme Court at the time it is done, but afterward, such act becomes a crime because the Supreme Court has changed its decision.
The Legislature has the right to make it an offense to serve intoxicating liquors at a banquet, and it also has the right to make it an offense to serve the same at any social gathering, and further, to make it an offense for persons to club together and send and get intoxicating liquors for their own use, but in my judgment, the Legislature of this state has not made such acts a crime, and the courts are without power to legislate.
The Supreme Court of Kansas, has at all times, gone to the full length in upholding and affirming the judgment of the trial court assessing punishment on convictions Lor violating the prohibition laws of that state, and yet, during the present year, that court has held that where persons club together and order a keg or case of beer for their own use, they do not violate the letter or spirit of the Kansas prohibition law.
In People v. Peterson, 120 N. W. 570, the Supreme Court of Michigan considered a statute reading as follows: "It is a misdemeanor, punishable by fine or by imprisonment, for any person to himself, or by his clerk, agent or employee, directly or indirectly, manufacture, sell, keep for sale, give away, or furnish any vinous, malt, brewed, etc., liquors, or to keep a saloon or any other place where such liquors are manufactured, sold, stored for sale, given away, or furnished.” The defendant had served bottles of-beer to guests assembled at a surprise party at the defendant’s home. In discharging the defendant, the Su*423preme Court said: “The object of the act is to prohibit the manufacture of, and all traffic in, liquors. It cannot be reasonably construed so as to apply to the individual use, or the keeping for use, of liquors by citizens."
It seems to me, if the defendant in good faith, and without any intent to sell or to deal in the beer for profit, ordered it in his own name, for the use only of himself and his co-owners, that he was not guilty of a crime. On the other hand, if he was using the method simply as a means to defeat the law, then he should be severely punished. I believe the court should by proper instructions, lift the veil of formality and permit the jury to pass upon the real character of the defendant’s conduct.
It has always been the practice in these liquor cases, to submit to the jury the question whether the defendant acted in good faith, or whether he employed the means he used as a mere subterfuge for the purpose of defeating the law. [State v. McCance, 110 Mo. 398, 19 S. W. 648; State ex rel. Bell v. St. Louis Club, 125 Mo. 308, 28 S. W. 604; State v. Clow, 131 Mo. App. 548, 110 S. W. 632.]
Section 7215 of the Revised Statutes 1909, provides that any sale of intoxicating liquor made to a minor, by any clerk of a dramshop keeper, shall be deemed as the act of such dramshop keeper. Section 7213 makes it an offense to sell intoxicating liquors to minors. Our Supreme Court long since held that it is a defense for the dramshop keeper, where the sale is made by his agent or clerk, to prove that it was made in his absence and against his instructions given in good faith. [State v. McCance, supra.] This is based upon the universally recognized rule that the letter of the statute must sometimes be cut down to conform to its evident spirit and intent. [Kane v. Railroad, 112 Mo. 34, 20 S. W. 532; Keeney v. McVoy, 206 Mo. 42, 103 S. W. 946.]
*424Guided by the above rules, it seems to me that mot-withstanding the reading of the Act of 1907, that it is substantially complied with, when the person ordering the liquor, and to whom it was sent, was in good faith, one of the owners of it, and that it was not ordered or used by any persons except the owners of it.
While it is my duty, under the Constitution, to follow the Burns case, .and while I shall do so in this case, and vote to affirm the judgment, I do not understand the Constitution requires me to say that the decision I am following is good law, when I do not believe it is.