Barnes v. State

19 Conn. 398 | Conn. | 1849

Ellsworth, J.

We have no doubt, that the justice who tried this cause, had jurisdiction to impose as many fines of ten dollars each, as there are distinct counts in the information. The statute of 1846, and the revised statutes of 1849, expressly give this jurisdiction to the justice, so that the general limitation of a justice to seven dollars in criminal cases, is not the rule in this instance. The legislature have seen fit to make this modification of the general law , and we perceive no valid objection to carrying out their declared will.

Nor can we doubt that a justice of the peace having jurisdiction, may, like the higher courts, permit several counts, for the same or distinct offences, to be put into one information. The person complained of, could gain nothing by a different practice.

Nor can we doubt that the county court ruled correctly, in excusing Whitney from answering as to his being a common drunkard. No witness is bound to answer, when the answer may criminate himself, which is the case here, since a common drunkard may be confined to hard labour in a work-house.

So we think the county court was correct in holding, that knowledge of one’s character, as a common drunkard, is not essential, to subject the offender to the penalty of the law. The language used is too clear and too positive to be mistaken ; nor can we mistake the evil aimed at, by the legislature. It tnay be noticed too, that while knowledge is declared to be necessary, when liquor is sold to a person addicted to habits of intoxication, this qualification of knowledge is in the very next clause,“ selling to a common drunkard,” as if the plea of ignorance should not avail, in the latter case. Nor is this unusual or unnecessary severity. No licensed taverner shall sutler minors, apprentices or servants, to sit drinking in his house, or suffer any of the inhabitants of the town to sit there tippling; nor may he sell to a student of any college. Can the taverner plead ignorance Í A female under the age of twenty-one years, is seduced, or is enticed away; is ignorance of her minority any defence ? Or if adultery is committed, can the adulterer plead his ignorance that the woman was married ?

The case of Myers v. State, 1 Conn. R. 502., to which reference has been made, is not inconsistent with these views. In that case, there was an exception to the thing prohibited ; and the court held, that an honest endeavour to keep within the exception, was sufficient to exculpate the accused.

But in another ruling of the court, we are constrained to say, that there is error. The accused, (a statute witness,) was offered to testify, that the sale was made without his consent, and contrary to positive instructions given to his clerk, by whom the sale was made, if made at all. The accused insists, that the word “ agent” shall be taken in its common acceptation; that the relation of principal and agent is matter of fact, to be left to the jury, and not an inference of law for the court. If he is right, the testimony should have been received, as conducing to prove there was no agency in fact. The true enquiry then, is, what does the statute mean, by the term “ agent ?“ A just interpretation must be our guide. If construed either way, it will not, we think, exceed the power of the legislature, though we should be induced, from necessity only, to put upon a common word, an uncommon and technical meaning, particularly in the construction of a penal statute. It certainly does not mean, that a person is another’s agent in every transaction, because he sustains towards him that general relation. Nor does it mean, every one who professes to represent another ; nor every one who acts as clerk of another in his shop, or office, or business; nor every one who sells liquor on his employer’s premises, without, and contrary to, his instructions. Obviously, courts can at-tac^ no ot^er thiin the usual meaning to the word “ agent”; unless unequivocally forced to it, by the clear language or (construction of the statute. An agent is an actual bona fide representative of his principal, in the particular transaction, with his consent or concurrence. What shall be sufficient evidence of it, in any case, does not belong to the present enquiry : the relation must be made out by proof, more or less particular, according to circumstances. We speak only of criminal cases; for we admit, that in civil matters, to prevent imposition or fraud, the relation of principal and agent is assumed, by courts, to exist, where it does not in truth exist. We are confident, this statute has not introduced a new principle of law into our criminal code; but this word “ agent,” is used, in order to guard against a too technical construction of a criminal statute ; a caution not really needed in this case, but very natural with such men as make our laws.

Besides, it must be remembered, that selling spiritous liquor, is, generally, a lawful business: it becomes unlawful only in particular cases. A grocer, a druggist, a physician, may sell it for medicinal purposes ; and for other purposes, if it is not to be drunk on the premises, and is not sold to common drunkards and persons addicted to habits of intoxication. Within these limits, he may direct his clerk, student or servant, to act for him, and forbid him to go further. The sincerity of the order must be judged of, by the jury : it may be sincere and proper, and might have been in this case: at any rate, we cannot say, that per se it must have been otherwise.

In Commonwealth v. Nichols, 10 Metc. 259. 262, 3. the supreme court of Massachusetts, in a prosecution on their statute, for selling spiritous liquors, hold this language: “We think that a sale by the servant, in the shop of the master, is only prima facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spiritous liquors without license; that the relation of these parties, the fact that the defendant was in possession of the shop, and was the owner of the liquor, and that the sale was made by his servant., furnish strong evidence to authorize and require the jury to find the defendant guilty. But we cannot say, that no possible case can arise in which the inference from all these facts may not be rebutted, by proofs ; unexplained, they would be sufficient to convict the party. So too, it should be understood, that merely colourable dissent, or a prohibition not to sell, however publicly or frequently repeated, if not made bona fide} will not avail. But if a sale of liquor is made by the servant, without the knowledge of the master, and really in opposition to his will, and in no way participated in, approved or countenanced by him ; and this is clearly shown, by the master ; he ought to be acquitted.”

We are aware, as already intimated, the master is sometimes made responsible civilly, foe his servant’s misconduct. This responsibility may grow out of an express or implied undertaking that the thing to be done shall be well done ; or out of that great principle of vigilance imposed upon a master, that he must see his business is conducted so as not to injure others ; or that his servants shall be duly attentive and prudent. But the master is never liable criminally for acts of his servant, done without his consent, and against his express orders. The liability of a bookseller to be indicted for a libel sold from his store, by his clerk, is nearest to it. But the character of those cases has not been always understood. If carefully examined, they will be found to contain no new doctrine. The leading case is Rex v. Almon, 5 Burr. 26. 86. Other cases followed, as may be seen, 2 Stark, on Slander, 34. (2d ed.) 1 Hawk, c.7 3. §10. Rex v. Walter, 3 Esp. R. 21. Rex v. Gutch & al. 1 Moody & Malk. 437. Attorney General v. Siddon, 1 Crompt. & Jerv. 220. 1 Trew, 41. 2 Crompt. & Jerv. 493. 2 Trew, 623. But having examined these cases, we speak with confidence, that they contain no new doctrine. They make a sale in the master’s store high, and unexplained, decisive evidence of bis assent and cooperation ; but they will not bear out the claim that a bookseller is liable, at all events, for a sale, by Ms general clerk. Lord Mansfield said, in Rex v. Almon, “the master may avoid the effect of the sale, by showing he was not privy, nor assenting to it, nor encouraging it.” So in Starkie, it is said, that the defendant, in such cases, may rebut the presumption, by showing that the libel was sold contrary to his orders, or under circumstances negativing all .... a o privity on his part.

We advise that there is manifest error.

In this opinion Storrs and Hinman, Js. fully concurred. Church, Ch. J. and Waite, J., dissented on the last point; but concurred on the other points.

Judgment to be reversed.