222 P. 869 | Cal. Ct. App. | 1923
On the fifth day of October, 1923, the petitioner was bound over to the superior court of the county of Sacramento by the police judge of the city of Sacramento to answer the charge of selling liquor in violation of what is generally known and called the Wright Act (Stats. 1921, p. 79). The petitioner seeks his discharge herein on the ground that he was held to answer for such alleged offense without probable cause, basing his petition upon subdivision 7 of section
The testimony, as set out in the transcript, shows the following state of facts: During the month of July, 1923, the defendant applied to the proper officers of the city of Sacramento for and obtained a license for conducting a soft-drink establishment at 218 L Street, in the city of Sacramento; that this license was in full force and effect at the time of the alleged offense for which petitioner was arrested; that on or about the third day of September, 1923, at about 7:30 P. M., two officers visited the establishment just referred to and found in the place a bar behind which was a man engaged in dispensing soft drinks. The two officers referred to requested that they be served with something stronger than soft drinks and, in response to such request, each of said officers was served with a drink of liquor known as and called jackass brandy. A portion of the drink so served was retained by the officers and upon being analyzed was found to contain 26.26 per cent of alcohol by volume, which is considerably more than the quantity allowed by law.
At the time the officers visited the place of business referred to the defendant was not present and the charge *11 against him is founded upon the theory that the principal, under such circumstances, is chargeable for the act of his agent, and that the circumstances tend to show that the agent was acting within the scope and authority of his employment and, therefore, with the consent of the principal.
The question before the court is not whether the evidence in this case is sufficient to warrant a conviction, but, simply whether there is sufficient testimony to justify the committing magistrate in coming to the conclusion that probable cause existed for believing the defendant guilty. That the crime was committed by the bartender is without question and the only fact remaining is, is there sufficient evidence to indicate that he was acting in the capacity of the defendant's agent and not simply on his own responsibility?, [1] The law seems to be well settled that in such cases the mere sale of intoxicating liquor by an agent is not sufficient, in and of itself, to warrant a conviction of the principal, but if the attendant circumstances are such that the court or jury may reasonably infer that the sale was made with the consent or knowledge of the principal, then, and in that case, he is equally guilty with the agent and may be held criminally liable.
In the first place, as we have seen, the testimony shows that the petitioner applied for and had issued to him, and was in the possession of, a license to conduct a soft-drink establishment at 218 L Street, in the city of Sacramento, county of Sacramento, at the date of the alleged offense.
"Evidence that defendant had previously applied for or obtained a license to sell liquor at the place in question is admissible as tending to show him to be the keeper or proprietor of the place." (Commonwealth v. Sullivan,
Whether such testimony is sufficient to establish the fact of proprietorship beyond a reasonable doubt is wholly immaterial upon this inquiry, or, upon the inquiry conducted by the committing magistrate; it is, however, testimony tending to show the fact of proprietorship and, therefore, measures up to the requirement of the statute specifying probable cause. *12
Now, let us reason a little on the question of probabilities. According to the usual course of business, the proprietor of an establishment is the owner who places others in charge thereof. It is possible that the man denominated by the witnesses as a bartender, as the one who dispensed drinks, was an interloper, but that conclusion is not probable. It is also possible that the bartender in charge of the establishment, for which we have seen another held a license to conduct the same, and, therefore, may be held to be the proprietor, was doing business upon his own responsibility and not upon the responsibility of the proprietor. But this again is not probable. It is possible that the bartender brought the jackass brandy to the place of business, which the testimony tends to show was conducted by another and kept the brandy there for sale for his own personal benefit, but this again is not probable. The usual and ordinary course of business is for the agent, clerk, or bartender, or by whatever name the person may be known, to sell those articles at the place of business that have been supplied by the proprietor thereof. Unless there is something appearing to the contrary, we think it reasonable to conclude that the usual and ordinary course of business has been followed and that, under such circumstances, the requirement of the Penal Code has been met.
In Knight v. Commonwealth,
This case was decided in April, 1922, and was before the court upon a judgment of conviction and, while the judgment was reversed on account of an error in the instructions given by the court, the supreme court of Kentucky, nevertheless, held that the trial court was correct in refusing to instruct the jury to bring in a verdict of not guilty on the testimony just referred to. It will be seen that the sale of the whisky in the Knight case was made at an ordinary country store where articles of merchandise were kept, as is common in establishments of that kind. In Elliott v. State,
Hart, J., and Finch, P. J., concurred.