Ritcher v. State

63 Miss. 304 | Miss. | 1885

Cooper, C. J.,

delivered the opinion of the court.

The appellant has been indicted and convicted of selling liquor to a minor. The fact of the sale was established by the party to whom the liquor was delivered, and the defendant then proposed to prove by the witness that he had been sent by his uncle to obtain the liquor; that the uncle furnished the money, and that the liquor was in fact delivered to him by the witness. Upon objection by the State this testimony was excluded, and on this action the first error is assigned. The proposition of the appellant is that if the purchaser acted not for himself but as agent for another the sale was to the principal and not to the agent, and since the principal was adult there has been no violation of law. It is sufficient to say that if the infant was agent, he was agent for an undisclosed principal, and under such circumstances had he been mi juris there would have been a right of action in himself on an executory contract, and he would have been liable to a suit by the seller, who at his option might treat the contract either as one made with the principal when discovered or with the agent. The appellant had the right to know, at the time of the contract of sale, whether he was dealing with one acting for himself or with a mere agent, and if the agent concealed or failed to disclose the fact that he was but an agent the right of the appellant to recover on the contract, if the sale had been on credit, could not have been denied upon the ground that there was not a sale to the party whom he alone knew in the transaction. The fact that in this case the sale was for cash and not on credit, and the further fact that the appellant and not the agent is objecting to the legal consequences of what was done, cannot vary the result. The question is, was there a sale to the particular person ? We reply that there was. Commonwealth v. Kimball, 7 Met. 308; Commonwealth v. Very, 12 Gray 124.

The court erred in sentencing the defendant to imprisonment as a part of his punishment. Section 1115 of the Code of 1880 declares what the punishment shall be for. the offense of selling spirituous liquor to a minor, viz.: a fine of not less than one hundred nor more than one thousand dollars. Section 1112 defines the punishment for a violation of other provisions of the act. Fahey v. The State, 62 Miss. 402.

The judgment is reversed and judgment directed to be entered here condemning the appellant to pay a fine of one, hundred dollars and costs of the prosecution, and to stand committed until the same is paid.