15 Ga. 346 | Ga. | 1854
By the Court.
delivering the opinion.
A principal is one who is the actual perpetrator of the crime; or who is present, aiding and abetting in the same. (1 Hale, 233, 615. 1 Ch. Cr. L. 256.)
The record shows, that Clement Turner was the actual perpetrator of the offence charged in this case, and that the plaintiffin error was not present, actually or constructively. Therefore, he could not have been a principal, in the commission of this misdemeanor ; and the Court erred in charging that he might be convicted on this indictment.
The Solicitor General suggests, that unless a person, circumstanced as was this plaintiff in error, be held liable to a prosecution, for the unlawful acts of his clerk, it will be difficult to bring persons to justice, who are in the habit of pursuing this unlawful traffic with slaves, because, (a,s he insists,) if the clerk be indicted, he will plead the authority and commands of his employer; and that the store or shop belongs to the latter.
Even in torts, an agent is liable, in damages, to third per■sons, for acts of positive malfeasance, (not, in general, for nonfeasance,) and it is laid down th'at “no authority, whatsoever, from a superior, can furnish to any party, a just defence for his own positive torts or trespasses.” (Story on Ag. §309.)
It was also said, that unless a principal be held liable for the acts of his clerk, in a case like that at bar, the cause of temperance and good order among our slaves, loses the benefit of one .of those guarantees against this traffic, which the Legislature has provided in the oath which every retailer is required to take, when procuring his license, to the effect that ho will not sell or furnish spirituous liquors to slaves. It should be remembered, that in taking that oath, the retailer is required also to swear, that he will not suffer or allow any other person so to sell or furnish spirituous liquors, with his knowledge or consent. '■
I would also suggest, that this Court has decided, in a case which was before us at our last session in Milledgeville, that it is lawful for the corporate authorities of any town or village in our State, having authority, by law, to grant such license, to
Judgment reversed.