Donnelly v. State, 86 Neb. 345

Donnelly v. State

86 Neb. 345 | Neb. | 1910

Reese, C. J.

Plaintiff in error Avas indicted by the grand jury and prosecuted in tlie district court for Boone county for tbe crime of selling intoxicating liquors without first having procured a license therefor. The indictment contained two counts. The first count charged a sale to David Primrose on the 23d day of February, 1909, and the second count with selling to George Bourn on the same day. A trial was had, and the jury returned a verdict finding *346the accused guilty as charged in the second count, and not guilty as charged in the first. A motion for a new trial was filed and overruled, and plaintiff in error was sentenced to pay a fine of $200. He prosecutes error to this court.

1. The first contention presented by plaintiff in error is that the district court erred in permitting certain witnesses to testify on behalf of the state whose names were not indorsed upon the indictment. In this the court did not err. Ballard v. State, 19 Neb. 609.

2. It is next contended that the .verdict is contrary to law and is not supported by sufficient evidence. The second count of the indictment charges a sale to George Bourn on the 23d day of February, 1909, within the county, etc. George Bourn testified that on or about that date he purchased a mixture of malt and whiskey at the place of business of plaintiff in error from his clerk or employee, Waddell. ' Waddell was not a witness, and the testimony of Bourn was not contradicted. This was sufficient as to the purchase and sale. But it was claimed and testified to by plaintiff in error that Waddell’s duties were to wait upon customers in the restaurant owned by plaintiff, and that he never authorized, directed, nor permitted said* Waddell to sell intoxicating liquors in the restaurant, nor consented to such sale. There was evidence introduced showing that plaintiff in error had sold intoxicating liquors to customers in his restaurant; that he had a soda fountain and other appliances for furnishing drinks denominated by him as “soft drinks”; that men were seen in his place of business who were intoxicated; and that plaintiff in error was present in the restaurant a great portion of the time and must have known what was being done there in addition to the sales made by himself. There can be no doubt but that plaintiff in error knew that intoxicants were furnished at his restaurant. We think the same rule must be applied here as in the case of In re Berger, 84 Neb. 128, except that it must operate more strongly against plaintiff in error than *347was applied there. The jury must have found that the sale by Waddell was with the tacit, if not the expressed, consent of plaintiff in error, and there was sufficient evidence to sustain their finding. The fact that plaintiff in error had no license could make no difference, as he would be equally liable for the acts of his employee in the one case as the other.

Finding no prejudicial error in the record, the judgment of the district court must be affirmed, which is done.

Affirmed.