Newsome v. State

1 Ga. App. 790 | Ga. Ct. App. | 1907

Powell, J.

(After stating the foregoing facts.) The Penal Code, §444, makes it criminal for “any person, by himself or another,” to “sell, or cause to be sold, or furnished,” to any minor any spirituous, malt, or intoxicating liquors, unless such person shall first obtain the written consent of the minor’s parent or guardian. In this State, as in most of the States,- this statute has been broadly and liberally construed in favor of the protection thus afforded against the obtaining of intoxicating liquors by minors. The word “sell,” appearing in the statute, is of course not to be taken in the strict technical sense of the word. One of the elements contained in the definition of a “sale,” as this term is ordinarily used in laws and court language, is competent parties. A minor not being a competent party to obtain .liquor, there can be, no sale to him, in the technical sense. The statute, therefore, makes punishable those acts which would amount to a sale of the liquors if the minor were 'a competent contracting party. If a liquor dealer in county A receive an order for whisky from a lawful customer in county B, and from his store, in county A, ship the whisky by a common carrier to the purchaser in county B, a sale has taken place in county A. If, under the same circumstances, the order be sent by an unlawful customer, — a minor, —and the goods be shipped, no sale, in the strict sense of the word, has taken place, but the quasi sale contemplated by the Penal Code, §444, has been consummated at the place where the delivery was made to the carrier; hence the liquor dealer may be indicted in that county.

But the sale or quasi sale is not the only offense under this statute. To furnish liquors or cause them to be furnished is also criminal. This offense is not complete until the minor receives possession of the liquors. If a minor in DeKalb county send a private person' into Fulton county to buy liquor for him, and this private person disclose to the dealer the fact that he desires the liquor for a minor, and the dealer send the liquor by this private person, who delivers it to the minor in DeKalb county, the dealer may be indicted in Fulton county for the quasi sale; both the dealer and the" private person through whom the delivery was effectuated may be indicted in DeKalb county for furnishing the liquor and causing it to be furnished; likewise where delivery is made through a common carrier. The purpose, the unbroken judicial construction, in fact the very language, of this statute, distinguishes the case at bar from the line of cases holding that in ordinary sales of intoxicating liquors, as well as of other com-modifies, tlie sale is complete at the place where delivery is made to the carrier. Those eases (e. g. Dunn v. State, 82 Ga. 27; Southern Express Co. v. State, 107 Ga. 670, and cases cited is therein) all proceed upon the theory that the common carrier is the agent of the consignee to receive for-him the goods and transport them; and therefore delivery to the carrier is delivery to the consignee. Watkins v. Paine, 57 Ga. 50.

If the sale be lawful at the place where the goods are tendered to the eárrier, it can not refuse them; it is a public agent for such purposes. But the carrier is not a public agent for unlawful purposes. If it accepts for transportation liquor consigned from a dealer to a minor, it carries it not as the minor’s property, for the law will not let the title pass, but as the dealer’s. Burnett v. State, 92 Ga. 474; So. Ex. Co. v. State, 107 Ga. 674. The carrier can not by contract, express or implied, nor by virtue of any public duty, become or agree to become the minor’s agent to accept for him delivery of a thing which the law forbids that he should receive. This principle existing in the law of agency is too universally recognized to require citation of authority. The two cases just cited above make it plain that there is no legal duty on the carrier to receive and transport the liquor in such eases; that, on the contrary, the law forbids it; and if the carrier delivers the liquor to the minor, he and the dealer are both principals in the crime of furnishing and causing to be furnished liquor to a minor. So. Ex. Co. v. State, ante, 700. Since the crime of furnishing becomes complete in the county where the minor actually obtains personal possession of the liquor, venue may be laid there.

3. That a defendant who furnishes liquor to a minor happens to be ignorant of the minority is no excuse. Most States recognize no exceptions to this rule. 17 Am. & Eng. Enc. Law (3d ed.) 335. Georgia is somewhat more liberal, and allows the accused to show, in defense,'that after honest inquiry and the exercise of due diligence he bona fide believed, and was justified in believing, that the person to whom the liquor was furnished was at the time of full age. Certainly a dealer who fills an order without inquiry is not within the protection of this exception. Loeb v. State, 75 Ga. 258; Harkey v. State, 89 Ga. 478; Burnett v. State, 92 Ga. 474; Blodgett v. State, 97 Ga. 351.

* Judgment affirmed.