149 N.C. 537
N.C.
1908
WaleeR, J.

It may be conceded, for the sake of argument, that there is no evidence in this case that the defendant sold any liquor, with or withоut a license, unless in buying the whiskey from William Triplett, the illicit dealer, for Gus *539 and George Tolley, be acted as bis agent, or more рroperly speaking, aided ‍​‌‌‌‌‌​‌‌​‌​​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‍and abetted tbe illicit dealer in tbe sale of tbe whiskey. In tbe case of State v. Smith, 117 N. C., 809, it was said tbat “this Court bas nеver beld and does not now give its sanction to tbe doctrine tbat the purchaser from an illicit vendor, even when be knows him to bе such, is particeps cñminis, and it necessarily follows tbat the agent through whom be buys is in no worse plight. But it was incumbent on tbe defendant, in order to excusе himself on tbat ground, to satisfy tbe jury tbat be did actually buy from another in tbe capacity of agent for the prosecuting witness, and not as an agent or employee of a person who furnished tbe liquor, or as tbe agent both of such person and tbe prоsecuting wit-' ness.” While it is true tbat a person who buys for himself, even from an illicit dealer, may not be criminally liable, because be сannot be considered, in a' legal sense, as assisting tbe dealer in making a sale by merely buying from him, yet, Under the .present law, be does aid him in making a sale to another if be procures tbe money which is to be paid to tbe dealer, as the price fоr tbe liquor, and then pays it to him, receives tbe liquor and delivers ‍​‌‌‌‌‌​‌‌​‌​​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‍it to tbe purchaser., Tbe law bad prohibited tbe sale of liquor at tbe place where this liquor was sold by Triplett and delivered to tbe Tolleys. Acts of 1903, cb. 349. It is provided by tbe Revisal, sec. 3534, as follows: “If any person shall unlawfully procure and deliver any spirituous or inalt liquors to another, be shall be deemed and beld iu law to be the agent of tbe person- selling said spirituous and malt liquors, and shall be guilty of a misdemeanor and punished in tbe discretion of tbe Cоurt.” Tbe meaning of tbat section is not very aptly expressed, but tbe Legislature bas sufficiently declared tbe intention to make it criminal for any person to procure liquor from an illicit dealer by purchase and to deliver it to another, when both tbe рurchase and tbe delivery are made in a place where the sale of liquor is prohibited by law. In such a case, the рerson *540 who buys the liquor and delivers it to another is' deemed, in law, to be the agent, not of the purchaser, but of the seller. While thе indictment is drawn for retailing, it charges in terms that the defendant unlawfully and wilfully sold a quantity of liquor to Gus Tolley. If he procured the liquor from Triрlett and paid him the price therefor, which he had received from the Tolleys, and then delivered the liquor to them, he was, by sec. 3534 of the Revisal, thereby.constituted an agent of Triplett, and, while the sale was made by, Triplett through him as agent to the Tolleys, he aided and abetted the sale within the meaning of that section and became a «principal in the commission of the criminal act. Although the language of the section is that the person procuring and delivering the liquor shall be deemed, in law, thе agent of the seller, it clearly means that such person shall be considered as a principal and liable' criminally as the seller. In misdemeanors, all who participate in the commission of the offence are regarded as principals. State v. Smith, 117 N. C., 809. In Risliop on Stat. Crimes (2 Ed.), sec. 1024, it is stated that he who sells liquor as the agent or servant of the owner, is liable for the whole offеnce as seller, and it makes mo difference. that others are equally liable also for the same sale, provided, оf course, that (lie sale by the owner is unlawful and a misdemeanor. It is suggested ‍​‌‌‌‌‌​‌‌​‌​​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‍that, unless it is forbidden by statute (Revisal, sec. 3534), where several persons contribute to a fund, with which they lawfully buy liquor, and then divide it among themselves in proportion to their contribution to the cоmmon fund, none of them thereby sells any of the liquor to the others, and that it has been so decided in other States. Miller v. Com., 76 S. W., 515; Miller v. Com., ibid, 509. We need not сonsider this question, as it is not presented in this case. See State v. Neis, 108 N. C., 787. The statute to which we have, referred was intended to prevent thе purchase by one person of liquor ‍​‌‌‌‌‌​‌‌​‌​​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‍from an illicit dealer, and its delivery to another who has paid the price, by declaring the *541 person who acts as the intermediary the agent of the seller, in the sense that he is an aider and abettor in the unlаwful sale and a principal offender.

It is not necessary that we should discuss the question whether, independent of the statute (EеVisal, sec. 3534), a person who buys liquor.from one he knows to be an illicit dealer and delivers it to another, who has given him the money ‍​‌‌‌‌‌​‌‌​‌​​​‌​‌‌‌‌​​​‌​​‌‌​‌‌‌​‌‌​​‌‌​‌​​​‌‌​‌‍to make the purchase, is criminally liable for his act as an aider and abettor of the guilty seller, whether he be his agent or the agent of the purchaser. As to this point, the authorities s.eem to be somewhat in conflict. In Foster v. State, 45 Ark., 361, he was held liable, though he wаs the agent of the purchaser, as he also aided and procured the illegal sale and, therefore, was a prinсipal. We need not assent to or dissent from that conclusion, as the decision of this case depends upon the true construction of a local statute.

In the view we take of the case, it is unnecessary to consider the authorities citеd by the defendant’s counsel. State v. Hopkins, 49 N. C., 305; State v. Taylor, 89 N. C., 577; State v. Smith, 117 N. C., 809 ; State v. Johnston, 139 N. C., 640; State v. Herring, 145 N. C., 418. We may say, though, that the case last cited, so far as the reasoning of the Court is concerned, has some bearing upon the case under consideration, as it was an indictment for retailing, the Court deciding that the defendant had aided and abetted an unlawful sale, at a place where the sale of liquor was prohibited, in that he had assisted the vendor to make the sale by soliciting orders and delivering the liquor to the parties who gave them, thereby becoming the sellеr’s agent in the transaction. The defendant was held to have been a principal and liable to indictment as such. We havе shown that, without regard to the manner of conducting the sale, the statute makes the intermediary the agent of the seller, and he is therefore criminally liable as principal under the doctrine in Herring’s case.

*542 Tbe defendant testified that be was not tbe seller’s agent, but tbis сan make no difference, as tbe Legislature bad declared otherwise, and be could not, by his testimony, annul or change tbe law.

No error.