Defendant, who was bartender in a saloon at Benton Harbor, where intoxicating liquors were sold, was convicted of selling spirituous liquors to one Sidney Phillips, a minor under the age of 21 years, and of the age of 17 years. The selling was not controverted.
The only question in the case is whether it is competent for a person charged with this offense to show what the person alleged to be a minor said regarding his age at the time the sale was made; and whether, if he represented himself to be of full age, and the seller made the sale in good faith, relying upon the representations that the minor was of full age, it would be a defense to' the action. The statute (section 13, Act No. 313, Laws of 1887) reads as follows:
“It shall not be lawful for any person * * * to sell, furnish, or give any spirituous * * * liquor * * * to any minor. * * * The fact of selling, giving, or*550 furnishing any liquid in any place where intoxicating liquors are sold, or kept for sale, to any minor, * * * fihall be prima facie evidence of an intent, on the part of the person so selling, giving, or furnishing such liquid, to violate the law.”
' The inhibition against the sale of liquors to minors has found a place in all the legislation of this State regulating the traffic since 1875. Until 1881, false representations by the purchaser, in order to obtain liquor, was made a misdemeanor, and punishable as such. In the legislation of 1881 this feature of the law was omitted, and a clause then appeared, for the first time, making the fact of selling, etc., to minors prima facie evidence of intent to violate the law. This has since been retained, with slight modification, until it appeared in the law of 1887, above quoted. When the person selling has knowledge that the person purchasing is a minor, the presumption is conclusive that he intended to violate the act.
It is evident, however, that the Legislature had in view that there might exist facts and circumstances attending a sale of liquor to a person, who was in fact a minor, which would show that the seller had no intent of violating the law. A minor who is just approaching his. majority may have the appearance of persons much older than 21 years, and if, on being inquired of, should assert that he was of full age, a dealer might sell him liquor in good faith, and without any intention of violating the law.
The plain inference from the language of this section of the statute is that there must be an intent to violate the law in order to convict; otherwise it would .be idle to provide that selling to a minor in a certain place should be deemed prima facie evidence of an intent to violate the law. If a sale to a minor in a saloon or elsewhere, in ignorance of his being a minor, and under such
But the defendant had a right to rebut and overcome this prima facie case by showing that Phillips was in fact 21 years of age, or by satisfying the jury, if he could, that the size and appearance of the boy, coupled with his statement that he was over 21 years of age, led him in good faith to believe that Phillips was not a minor, and that the facts and circumstances were such as would warrant the jury 'in arriving at the conclusion that the defendant did not intend to violate the law. Phillips was a witness for the prosecution. He was then before the jury, and they had an opportunity of observing his appearance as to age and size. He testified that he was only 17 years of age the June previous. It was competent on the question of age, for the purpose of contradicting the witness, and thus affecting his credibility, to show that he stated at the time he purchased the liquor that he was over 21 years of age.
We think, also, that the defendant had a right to show all that transpired between him and Phillips at the time the liquor was sold as a part of the res gesta, and as bearing upon the criminal intent. What he said concerning his age would not, in and of itself, justify defendant in selling liquor to a minor, and exculpate him from liability for an infraction of the law; but it was testi
In People v. Garrett,
The case of People v. Roby,
The question which confronts us here is whether the
The case of Faulks v. People,
“ The fact of selling, giving, or furnishing any of said liquors to any minor, or to any intoxicated person,- or to any person in the habit of getting intoxicated, shall be a prima facie presumption of an intent on the part of the person so selling, giving, or furnishing such liquor, to violate the law.”
I think it is a fair presumption that this clause was inserted in the act of 1881, because of the above holding in Faulks v. People; the Legislature recognizing the law to be as so enunciated with respect to this offense that a criminal intent was necessary to constitute the crime, and hence they prescribed a rule as to what should be prima facie evidence of such intent.
This, being a criminal offense, and having received both a judicial and legislative construction, must be interpreted in accordance therewith, until the Legislature shall see fit to amend the law. We cannot, in justice, interpret the law one way as to Faulks, and the contrary way as to
It follows that the holding of the court below that criminal intent was immaterial, and excluding testimony tending, to rebut the prima facie case made by proof of selling in a saloon where liquors were kept for sale, was erroneous, and the conviction must be set aside, and a new trial granted.