194 Wis. 67 | Wis. | 1927
The following opinion was filed June 20, 1927:
Though the finding of unlawful liquor on the premises of one, as defendant here, licensed under sub. (29) and (30), sec. 165.01, Stats., to conduct the business of selling non-intoxicating liquor may be some, or prima facie, evidence of a violation of the statutes here involved, yet to sustain a conviction there must be a showing of defendant's conscious possession. The court correctly so charged the jury under the rule declared in such cases as Larsen v. State,
Under the evidence here the conviction can only be sustained if the statements testified to as having been made by the defendant to the officers are sufficient acknowledgments of defendant's guilt beyond a reasonable doubt, or because the conscious possession by the one left in charge of the premises was the conscious possession of the defendant. *70
The alleged statements of defendant quoted above, relied upon under the first of the suggested grounds, are clearly insufficient. They are as lacking in convicting effect as were those discussed in Scott v. State,
It is strenuously contended that the conviction should be upheld on the theory that the conscious possession of contraband liquor by defendant's agent in charge of the licensed premises can be or must be held to be the conscious possession of the defendant. This argument is made upon a line of cases in this court, prior to the Eighteenth amendment, such as State ex rel.Conlin v. Wausau,
We deem that doctrine not applicable here because the possession of the agent here was not within the scope of his employment. It was no more part of this employee's duty to obtain or have unlawful liquor than to have unlawful possession of drugs or burglar tools. In the cases cited above the agent was employed to have possession of and dispose of liquor for the defendants. The very employment, therefore, contemplated and covered the field of possession, disposal, and sale of the articles, so that the respective violations by the agents of the specific regulations as to the *71 manner of carrying on such employment could properly be charged against the defendant employers who knowingly furnished the agents with the means and opportunity of violating the law. Here the defendant as employer did not confer upon the one left in charge of the premises any power, authority, or means for any such violation. The act of the employee in going outside of the premises and obtaining the forbidden alcohol was a stepping outside of any express or implied authority given him by defendant. For such an act, entirely independent of and beyond the purpose of the employment, the defendant ought not to stand charged merely because of an existing relationship of master and servant for an entirely different and lawful purpose.
The cases from other jurisdictions relied upon by the State are all clearly distinguishable.
In People v. Liebiotka,
The evidence being insufficient to support a conviction, defendant's motions to be discharged should have been granted.
By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the proceedings.
A motion for a rehearing was denied, without costs, on November 8, 1927.
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