181 Ind. 562 | Ind. | 1914
Indictment against appellant and another for alleged sale of intoxicating liquor to a minor. The indictment was returned February 8, 1913, and charged the alleged unlawful sale to have been made on or about December 14, 19012. There was no motion to quash. There was a motion in arrest. The errors assigned are, that the indictment does not state a public offense, and in overruling the motion in arrest, and the motion for a new trial.
Our code practice is closely allied to the general demurrer at common law, limited, however, to the statutory causes. These two lines of cases seem not to have noted the distinction between such defects in pleading as cannot be reached by demurrer, and do not need the aid of a verdict, and those which are insufficient to withstand demurrer and may be aided by verdict. It might be difficult as an abstract proposition, to see how a pleading insufficient on demurrer for want of facts, can be cured by verdict, but the propositions are perhaps reconcilable upon the analysis pointed out in the language of Chitty and Stephen. It has been uniformly held, prior to the enactment of 1911 (Acts 1911 p. 415, §345 Burns 1914), that the defect was not waived by
The offense charged is of a past transaction, and is that of unlawful sale to a minor, and the specific person charged is appellant. The allegation as to time is both surplusage, and repugnant to the allegation of a fact in the past, and we are required to view the matter in a common-sense manner, and to view the indictment as a whole. State v. Patterson, supra; Rubush v. State, supra; State v. White, supra; Smith v. State (1896), 145 Ind. 176, 42 N. E. 1019. We are bound to presume on this motion that it was shown by the evidence, that the offense was committed at some time prior to the return of the indictment, within the period of limitation, and this rule is in consonance with reason, and adjudicated cases. Woodworth v. State (1896), 145 Ind. 276, 43 N. E. 933, and cases cited; Campton v. State (1895), 140 Ind. 442, 39 N. E. 916; Nichols v. Stale (1891), 127 Ind. 406, 26 N. E. 839; State v. Sammons, supra; Trout v. State, supra; Rubush v. State, supra.
It is not suggested, nor can we perceive how the allegation as to time, could have prejudiced appellant’s rights in the least, and we are by statute required to disregard technical errors, or defects, or exceptions to any decision or action of the court below, which does not in the opinion of the court, prejudice a defendant’s substantial rights. §2221 Burns 1914, Acts 1905 p. 584, §334. We are not able to subscribe to the doctrine of those earlier cases, to the full extent to which they go, with no distinction being made between the two motions under the existing
The indictment charges an unlawful sale, barter or giving away of intoxicating liquor by appellant, and Oren D. Brown to Edward Hunter, a person under twenty-one years of age. One Emley testified to being in appellant’s saloon December 15, 1912, but did not know that appellant was there; that he did not see Brown there, did not notice, if he was there; saw Hunter drink some beer there, and did not know how many bartenders were there. Hunter testified that he was 18 years old at the time he was in the saloon, knows appellant; that he was in the saloon of appellant with Emley; did not know any of the bartenders, and could not say whether appellant or Brown was there, and does not remember any of the bartenders, or those who were at the bar, and that he bought and paid five cents for intoxicating liquor there; that it was beer; that he could not tell from whom he bought it, that he knew Brown; did not know whether he was intoxicated; does not recall distinctly his testimony before the grand jury, or whether he testified there that Boos was there, or whether he asked that some one “give him a glass of beer”. Brown testified that he knew Hunter; that he was working in appellant’s saloon in December, 1912; that Hunter was not in the saloon to his knowledge in December, 1912, and that he had never sold or served Hunter beer; that appellant was the proprietor, and he, and one Rose, and appellant attended the bar; does not recall ever seeing Hunter there, or how many persons would drink there each day; and never knew Hunter to be there, or be refused a drink. Rose testified that he never sold Hunter beer, and that none
The court instructed the jury as follows, “The court charges you, that in order to warrant a conviction of one engaged in the sale of intoxicating liquor, for having made an unlawful sale, it is not essential that the proof should show the defendant to have made the unlawful sale in person, but the proprietor of the saloon may properly be held responsible for the act and conduct of his agents, done and performed by them, while conducting the business for their principal. The proprietor may even be held responsible for acts and sales of his clerks and agents done and performed in the absence of the proprietor, and of which the proprietor may have no personal knowledge. In this case at bar, the doctrine of the principal being held for the acts of his agent done and performed by the agent while conducting the business for his principal, would have no application to the defendant Brown, for he being only a clerk or agent for Boos, could not be held responsible for any sale not made by him personally.” The court declined to give an instruction tendered by appellant, as follows, “The indictment charges that the sale of liquor described therein was made by Oren D. Brown and Jacob Boos to Edward Hunter. In order to secure a conviction, and before the jury can find the defendant Boos guilty, it must be shown beyond a reasonable doubt, that the liquor was sold either by said defendant Boos, or in his presence, or under such circumstances that he must have known that the sale was made, and if there is no such proof, the jury should find the defendant Boos not guilty.”
The issue of law is squarely presented under these two instructions, with the testimony of two witnesses that Hunter drank beer in appellant’s saloon, and by the latter, that he
It cannot be gainsaid, that during the greater portion of the judicial history of this State the rule of construction contended for by appellant, has obtained. Other jurisdictions are about equally divided on the question, controlled in many instances, however, by the particular statute. Ordinarily, crime is personal. An act may be impersonal, and yet be a crime by statute from considerations of public policy, graduated according to conditions or circumstances, conspicuous instances of which are in gradations from murder in the first degree to involuntary manslaughter, and in prohibited things such as discharging weapons, by which unintentional injuries are inflicted, and generally in committing an unintentional crime, in the commission of a
Much plausibility in argument in support of the contention of the State is to be found in adjudicated cases to the point that intent and knowledge on the part of the licensed vendor of intoxicating liquors, are equally immaterial, on the ground of the business being so far personal to the licensee, that he should be held responsible as a matter of public policy, for the acts of the agents he may select in carrying it on, and the further ground that in misdemeanors, all are principals. Some of the cases are the following: People v. Lundell (1904), 136 Mich. 303, 99 N. W. 12; State v. Burchinall (1832), 2 Harr. (Del.) 528; Lehman v. Dist. of Columbia (1902), 19 App. Cas. D. C. 217, and cases cited; McCutcheon v. People (1873), 69 Ill. 601; People v. Roby (1884), 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270, and eases cited; Carroll v. Maryland (1885), 63 Md. 551, 3 Atl. 29; People v. Longwell (1899), 120 Mich. 311, 79 N. W. 484. In this case, however, the act extended to any person “who himself or by his clerk or agent” sells, etc. Commonwealth v. Emmons (1867), 98 Mass. 6; Loeb v. Georgia (1885), 75 Ga. 258; State v. Kittelle (1892), 110 N. C. 560, 15 S. E. 103, 15 L. R. A. 694, 28 Am. St.
There can be no good reason, aside from the public policy involved in the difference in grade of the offense, in permitting a defense of this kind, and denying it with respect to rape upon females, under the age of consent, yet it is the acknowledged public policy. The same rule was applied under statutes with respect to sales to persons in the habit of becoming intoxicated. Farrell v. State (1873), 45 Ind. 371. And under the statute prohibiting sales to persons in the habit of becoming intoxicated, it has been held that the person to whom the sale is alleged to have been made, must be shown to be in the habit of becoming intoxicated, and applied the former rule, as to defenses of good faith
The statute with respect to sales to persons in the habit of becoming intoxicated is, that “whoever, directly or indirectly, sells,” etc., §2485 Burns 1914, Acts 1905 p. 584, §574, but it has not we believe been understood before the Groff case, since Pennybaker v. State, supra, which held the contrary, that the proprietor could be convicted for a sale by his employe, done without his knowledge or consent. By the act of 1852 (2 R. S. 1852 p. 435, §26, 2 G. & H. p. 465, §26), sale to a minor by any person “by himself or agent,” was penalized. By the act of 1853 (Acts 1853 p. 87), this law was repealed. In 1859 (Acts 1859 p. 202, §11, 1 G. & H. p. 617, §11), the interdiction was if “any person shall,” etc. By the act of 1873 (Acts 1873 p. 154, §6), the prohibition went to a sale by any person “by himself or agent,” and under that act, conviction of the proprietor for sale by his agent, was denied. Hanson v. State, supra; Thompson v. State, supra. And the same as to a sale to one in the habit of becoming intoxicated, under the same section. O’Leary v. State, supra. By the act of 1875 (Acts 1875 [s. s.] p. 55,1 R. S. 1876 p. 872, §13) the interdiction was ‘ ‘ If any person shall sell, barter or give away directly or indirectly,” etc., with the position of the adverb changed in the act of 1881 (Acts 1881 [s. s.] p. 174, §2094 R. S. 1881), to read “Whoever, directly or indirectly,” etc., and this language is followed in the act of 1905, §2486,
Recurring to the Groff case, it is to be observed that the court was not in the situation with respect to the pure food law, or with respect to restrictions of the drug trade, that this court is confronted with, and that the opinion in that case travels on the basis of substitution in the sale of something other than dairy butter, an adulteration, to wit: an article defined by the statute as adulterated, that is, that it was a fraud on the purchaser, in substituting an adulterated article for the genuine article called for by the purchaser. The statute is aimed at fraud, and for the protection of the public health. Here, however, we have a statute in aid of morals, and perhaps also of health, that is, one prohibition is as to inanimate things, and the other respects persons, and in the latter the crime, while against the person, is not for fraud upon him, but an affirmative act in violation of a .declared public policy. The reason for the statute may be as potent in one case as in the other, but the crime in one instance is against the person, for fraud upon him, and in the other against the public, and its policy, and with respect to the latter, the like public policy of this State seems to require that guilt shall be personal, or at least involve knowledge or intent, as necessary elements
State v. Kittelle, supra, is also relied on by the State in the matter of the construction of the words “directly or indirectly, ’ ’ in which the words were held to include agents, in an opinion of learning and logical reasoning, but we are confronted with a history which appears to have impressed this court in the past, and the legislation of the State, with a different view of the intent in the use of those words. The leading case holding a liability of the proprietor, is People v. Roby, supra, involving a negative, rather than an affirmative act; but many cases are there collected by the learned Justice Cooley, in support of liability for an affirmative act of an agent. See, also, St. John v. New York (1906), 201 U. S. 633, 26 Sup. Ct. 554, 50 L. Ed. 896, 5 Ann. Cas. 909. But it appears to us to lie with the legislative, rather than the judicial branch, to declare the public policy contended for by the State, though if it were a primary question for the court, as a matter of construction, it could be upheld upon very rational grounds. We are constrained to the view that the judgment must be reversed on account of the instructions, and a new trial granted, and it is so ordered.
Note. — Reported in 105 N. E. 117. As to illegal sales of intoxicating liquors to minors, see 12 Am. St. 354. As to criminal liability for sale of liquor to minors by partners, agents or servants, see 41 L. R. A. 666. As to tbe validity of an indictment or information fixing tbe commission of a crime at a future or impossible date, see 6 Ann. Cas. 854; Ann. Cas. 1913 B 1043. See, also, under (1) 12 Cyc. 812; (2) 22 Cyc. 318; (4) 12 Cyc. 743.