Russell v. State, 116 P. 451

Russell v. State

116 P. 451 | Wyo. | 1911

Beard, Chief Justice.

In this case the plaintiff in error, Walter Russell, was charged with the crime Of selling intoxicating liquor without a license therefor. The information is in four counts charging four separate sales of whiskey. The cause wás tried to a jury, and a verdict of guilty on each count was returned, and the defendant (plaintiff in error) was fined in the sum of one hundred and fifty dollars on each count, and he brings error.

The information in this case is'in the same form, arid the record is in the same condition as in the case of James Vines v. State, just decided, which is referred to for our conclusions on the motion to strike 'the bill of exceptions from the record, and the sufficiency of the information. In the present case it is contended that the evidence shows that the alleged sales were made by the Dietz Club, a corporation, and that as the defendant is charged individually and not as agent or employee, the evidence is insufficient to establish the charges contained in the information. The defendant was prosecuted under the provisions o.f the statute which declares that “No person or persons within the state, directly or indirectly, in person or by agent or employee shall vend, sell, barter or dispose of for any pecuniary advantage, any spirituous, malt, fermented or intoxicating liquors or wine without first obtaining a license therefor as provided in this chapter. Every person who shall violate any provisions of this section shall be fined in the sum of one hundred and fifty dollars, together with the costs of suit, for each and every offense, and shall be confined in the county jail until such fine is paid, or until otherwise discharged according to law. In case of any violation hereof by any corporation, every officer, agent or employee making, or in any way countenancing or conniving at any sale or sales in violation hereof shall be deemed and held a person making such sale or sales liable to the pains and penalties herein imposed.” (Sec. 2832, Comp. Stat.) This contention is based upon the language contained in the last sentence above quoted; and it is argued that the information in *281such case must charge the sales to have been made by the corporation, and that the defendant was an officer, agent or employee of the corporation and made, countenanced or connived at such sales. But we do not agree with that contention. In the case at bar, the defendant had the possession and control of the liquor, personally received the orders therefor, delivered it to the parties and received the money therefor; and in such case it makes no difference whether he acted for himself or as agent or employee of another person or corporation, if neither he nor his principal had a license. If his principal had a license that would protect him in making the sales as agent; but if not, then both were equally liable, if the sales were unlawful, and might be jointly or severally prosecuted. (2 McClain’s Crim. Law, Sec. 1239; Bishop on Statutory Crimes (3rd Ed.), Sec. 1024; Woollen and Thornton on Law of Intoxicating Liquors, Sec. 339; 23 Cyc. 206.) The provisions of the statute above quoted extend the liability to officers, agents and employees of corporations who though not actually or personally making the unlawful sale, in any manner countenance or connive at the same. Whether or not such officer, agent or employee not personally making the sale should be so charged is not involved in the present case. The defendant sought to show by cross-examination of the witnesses who testified to the several purchases of whiskey charged in the information, that they purchased the same from the Dietz Club; that they were members of the club, and that they’could not procure the liquor from the defendant until they joined the club, which, according to their testimony, consisted of signing their names in a book and receiving a membership, card. The only evidence offered by the defendant, was the certificate of incorporation of the Dietz Club and the membership card. The certificate of incorporation states the objects and purposes of the club to be, “To promote the diffusion of useful information among the members thereof! To establish and maintain a place of amusement for the .members thereof and to entertain and amuse at such place or places of amuse*282ment as may be established by the board of directors of said corporation, the members thereof.” The" theory of the- defendant being, that if the sales were by the club they should- have been so charged, and that defendant was an officer, agent or employee thereof; and further, that the case comes within those- decisions holding that social clubs organized for lawful purposes and where the dispensing of intoxicating liquors to members only, is a mere incident to the real objects and purposes of the club and the business conducted by it, that such transaction does not constitute a sale within the meaning of the statute prohibiting sales wihout a license. The first-of these propositions we have already answered. The social club theory seems to have been the one upon which the case was tried and submitted to the jury. The court instructed the jury as follows: “You are instructed that no club can lawfully sell intoxicating liquors without a license, even to its members, if the selling of such liquors is the principal object of the club. To be lawful the club must in good faith be organized for some lawful purpose other than the sale of intoxicating liquors,' in which the dispensing of liquors to its members is merely incidental to such lawful purpose, as part of the entertainment it affords its members. If the sale of intoxicating liquors is really the main object, and the other features of the club are merely adopted to create the appearance of a bona -fide club, such a club would be unlawful and the sales of intoxicating liquor by it without a license would be a violation of law.” This instruction was favorable to the defendant; for, if the jury found from the evidence that the sales were made by the defendant as agent, of the club, it must also have found, under the instruction, that the main object of the club was the sale of intoxicating liquors. The real objects and purposes of the club are to be determined not from the statement of those objects and purposes contained in its certificate of incorporation alone, but also from the business in which it is actually engaged and the manner in which it is conducted. In this case the evidence is to the effect that the premises occupied by the club consisted of a *283large room, in which were a bar, back bar, cigar case, a few tables and some chairs. And at the time it was visited by the witnesses there were present in the room some twenty or more persons drinking liquor, principally beer. The question of the main objects of the club was submitted to the jury, and it having found, as it must have found under the instruction given, in order to convict the defendant, that the main object was to sell intoxicating liquors, it cannot be held that the furnishing of whiskey to the persons named in the information, and as testified to by the witnesses, did not constitute “sales” within the meaning of the statute.

It is also contended that the court erred in admitting evidence of other sales of liquor in the club room and to other persons than those charged in the information. The information charged four separate sales to particular individuals. In such case the general rule is that the prosecution must prove the sales as laid in the information, and as that sale is the issue raised, no other sale can be proven. (2 Woollen and Thornton on Law of Intoxicating Liquors, Sec. 931, and cases cited in notes.) We think the court erred in admitting evidence in plaintiff’s case in chief of other sales than those charged. But when.the defendant sought to prove that the sales charged were made by the defendant as agent of the club, to members of the club only, and that the transactions were merely the distribution of liquors among its members, and not “sales” within the meaning of the statute, he then raised the issue as to the character of the club and the business conducted by it; and evidence of other sales, the kind of business in which it was engaged and the manner in which.it was conducted became material and was admissible on that issue, and cured the error in admitting such evidence in the first instance. It is also contended that the court erred in admitting on rebuttal further evidence of other sales and description of the club room. This evidence was properly rebuttal, and could have been properly excluded only on the ground that the prosecutor had anticipated the defense by the intro*284duction of evidence to the same effect in the case in chief. The general rule is, that if the plaintiff sees fit to call any evidence in anticipation of a defense, he should be required to then produce all of his evidence on that subject, and should not be allowed to split his evidence in two parts and to give one part in chief and the other in rebuttal. Orderly procedure in the trial would require this. However, the rule is not an arbitrary one, and the 'trial court is allowed considerable latitude in the exercise of its discretion in that respect. (3 Wigmore on Evidence, Sec. 1873; Fitzpatrick v. Papa, 89 Ind. 17; Dugan v. Anderson, 36 Md. 567.) Professor Wigmore, in the section above cited, says: “In general, such discretionary variations should be liberally dealt with; for nothing can be more irrational or more unjust than to apply the judicial lash of a new trial to errors of'trivial importance.” We do not think the record presents such an abuse of discretion in admitting the ’evidence as to constitute grounds for a reversal. ■

It is also claimed that the statute imposes an excessive penalty and is therefore unconstitutional. But a fine of one hundred and fifty dollars for a misdemeanor is neither unusual nor excessive; and because one has violated the statute several times on the same day, and because the aggregate of the fines amounts to a considerable sum does not make the punishment excessive.

We find no substantial error in the record, and the judgment will, therefore, be affirmed.

Affirmed.

Scott, J., and PoTTER, J-, concur.