| Ark. | Nov 15, 1885
Appellants were jointly indicted for being interested in the unlawful sale of wine to a minor, without the consent in writing of the parent or guardian of the minor, and at the September term, 1884, of the Craighead circuit court for the Jonesboro district, were tried, convicted and fined $50 each.
The proof showed that Ben. Hughes, an adult, and Levi Shirey, the minor, went to the saloon of Edgar & Dowell, the defendants, and drank over the bar. The witnesses could not remember who called for the drinks. Hughes paid for them in checks. Shirey, the minor, stated that he did not pay for them; that he was his father’s bar-keeper, and that he frequently went to saloons other than his father’s, and took drinks without paying for them, and that if those drinks were paid for by any one he did not know it; and that neither of the defendants was present.
The court instructed the jury as follows:
“2. If the jury find that the saloon at which the minor got the drink belonged to defendants, and that the sale was made by both or either, or by their clerk, agent or bar-tender, they will be held to be interested in said sale, whether made by them or their agent, and they will both be guilty in either event, whether present or not.
“3. If the jury find that Shirey, the minor, and the witness, Hughes, both went up to the counter and called for the drinks, and the bar-tender set out the drinks called for to both parties, it was a sale to both; and the fact that Hughes, after they had taken the drinks, paid for them, would not change the character of the sale, or make it a sale to Hughes only.
“4. The fact that the drinks were paid for with checks instead of money, will not alter the case. A sale may be made for money or any other thing of value, and if it appears that the drinks were sold and the bar-tender accepted their checks in payment, they will be presumed to have had a value.”
The second direction followed Robinson v. State, 38 Ark., 641. The retailing of spirituous liquors is not a natural right, but is subject to the police power of the state. Persons embarking in the business must submit to such regulations, terms and burdens as the legislature may impose for the public good.
rr., . . , TT . The evidence certainly discloses a sale to Hughes, or the minor, or to both. To.whom the sale was actually made was a question for the jury. If each ordered the drinks, it was a sale to them jointly or severally. That the minor did not pay his score, or that it was paid by his companion, or whether, in fact, it was ever paid at all, is immaterial. It was a question of sale, not of payment. Hale v. State, 36 Ark., 150.
The'fourth direction may not contain an accurate definition’ of a sale; but the defendants could not have been prejudiced. If the' checks, that are mentioned as the medium of payment, were checks on a bank, there could, of course, be no difficulty in construing them to be promises to pay. If on the contrary, as is contended in the argument here, they were mere counters or tickets sold by the defendants, worth a certain sum, and to be taken up in drinks at their bar, the jury would be warranted in inferring thaf they were the representatives of money. Stevens v. State, 3 Ark., 66; Fagan v. State, 21 Id., 390.
But the circumstance of payment is, in this case, unimportant. The sale was complete upon the delivery of the wine to the minor, pursuant to his request, and upon the understanding by the bar-tender that compensation would be made.
Affirmed.