43 Ind. 550 | Ind. | 1873
This was an indictment against the appellant, charging that on the 7th day of June, 1873, at, etc., he did unlawfully sell to Edward Coval, who was then and there a person under the age of twenty-one years, one pint of intoxicating liquors, contrary, etc. On arraignment, the defendant pleaded not guilty. The issue was tried by the court, and there was a finding against the defendant. He moved for a new trial, on account of the insufficiency of the evidence. His motion was overruled, and sentence was pronounced against him. The error assigned is, among others, the overruling of the motion for a new trial. The sixth section of the act relating to intoxicating liquors, Acts 1873, p. 154, isas follows: “It shall be unlawful for any person, by himself, or agent, to sell, barter, or give intoxicating liquors to any minor, or to any person intoxicated, or to any person who is in the habit of getting intoxicated.” By the fourteenth section of the act, the punishment for violating the sixth section of the act is a fine of not less than ten nor more than fifty dollars, or imprisonment in the county jail not less than ten nor more than thirty days.
The evidence in the case that we are considering, which was that of the person who purchased the liquor, shows that he was under twenty-one years of age at the time of the trial; that on the 7th day of June, 1873, in Marion county, Indiana, and in the city of Indianapolis, he went into the
It is claimed by counsel for the appellant, that this evidence is insufficient in two essential particulars: 1st. That the sale was made in the absence of the appellant, and, so far as the evidence shows, without his knowledge; and, 2d. That the witness did not purchase any intoxicating liquor to drink himself, which was essential to a conviction.
Perhaps it may be fairly inferred from the evidence that the appellant had a license or permit to sell liquors. It is shown that the place was a saloon where liquors were sold, and there was a bar-keeper there. Assuming, then, that the defendant was lawfully engaged in the business of retailing intoxicating liquors, that the bar-tender was his agent, and, in the absence and without the knowledge of the defendant, sold the liquor to the minor, the first question is, does this show a violation of section six by the defendant ? The section on which the indictment is founded makes it penal if the defendant, by himself or his agent, sold to the minor. But can we presume that the defendant, when he left the bar-tender in charge of the bar, made him his agent to sell to a minor, an act which would be in violation of law? There is no evidence that he authorized any such sale. If that fact can be found, it must result as an inference from the fact that the bar-tender was left in charge of the bar. We think that no such .inference, from that fact alone, can arise. If it had been shown that the defendant had authorized and instructed his bar-keeper to sell to the infant in question, or to infants generally, or if he had been pres
The other ground taken against the conviction in this case raises the question whether, if a minor purchase liquor, not to be drank by himself, but by others who are adults, the person selling to him is guilty of a violation of section six. That the selling in such a case is within the letter of the section is clear enough. But the question is, is it within the mischief against which it was intended to guard? Laws are not to be literally construed when such a construction will carry them beyond the legislative intention. As it is not necessary in this case that we should decide this question, we leave it undecided.
The judgment is reversed, and the cause remanded, with instructions to grant a new trial.