| Ind. | May 15, 1863
Indictment. The charge is that Henry Pick-ens on, &c., at, &c., did sell for one dime, barter for, and give away, two gills of intoxicating liquor, &c-, he, the said Henry, not being licensed, &c. Motion to quash overruled. Plea, not guilty. Einding for the State. New trial refused, and judgment.
The facts are these: One Nathaniel Martin, in September, 1861, took out license to sell intoxicating liquors, in the same house in which the sales, charged in the indictment, were made. He, Martin, carried on the business of retailing intoxicating liquors, in that house, under his license, until December, 1861, when he enlisted in the TJ. S. army. In addition to retailing, &c., under his license, he also sold crackers, cheese, &c. Martin having entered the service of the U- S. as a volunteer soldier, his family continued to re'side in the house, though not in the same room of the house, where the liquors were sold, until May, 1862. When Martin joined the army, Pickens, the defendant, took charge of the establishment for him, as his agent. The wife of Martin, who, with his and her family, resided in the house as aforesaid, continued to get from the grocery establishment, such articles as were useful in the family, and-also got money from Pickens for such use. Pickens quit the premises in August, 1862, at or about the time the aforesaid license expired. The selling charged in the indictment and proved in the evidence, took place while the defendant was acting for Martin, and in the same house and room where he had done business.
The following written instrument, the signature to which having been proved to be in the hand-writing of Martin, was given in evidence:
“Know all men, &e., that I, Nathaniel Martin, of Bartholomeio County, and State of Indiana, do constitute and appoint Henry Pickens, of the County and State aforesaid, to be my lawful attorney, to do and act for me, the same as if I was there myself, in my business in the town of Taylorsville, in said county. Dated, Taylorsville, December 21,1861.
Signed, Nathaniel Martin.
It appeared that Martin’s business establishment was in Taylorsville, that the recited instrument was executed at, or ¡near the time he joined the army, and that Pickens conducted the business of that establishment, from the time Martin so joined the army, until the license to retail expired. And when, in addition, it is noted that Martin’s wife, in his absence, and during the period in which the business was transacted by Pickens, received from the establishment store goods and money, for the use of her family, the conclusion that he, Pickens, in selling the liquor, acted as Martin’s agent, is not doubtful. Hence the inquiry arises, is the defendant liable? It is true, a license, such as the one before us, is not transferable by assignment or otherwise. 5 Blackf. 151" date_filed="1839-05-29" court="Ind." case_name="Godfrey v. State">5 Blackf. 151. But we perceive no reason why a licensed vendor of intoxicating liquors, may not employ an agent to conduct and carry on the business. There is indeed nothing in the law regulating the sale of liquor, that forbids such employment, and the result is, the defendant having made the alleged sales, as agent of Martin, who was at the time regularly licensed, &c., is not liable on the indictment. -
The judgment is reversed.