| W. Va. | Oct 31, 1876
This is a case upon an indictment charging the defendant, that he (John Cain), on the first day of December, A. D. one thousand eight hundred and seventy-three, in the county of Wood, unlawfully did sell intoxicating liquors to one Michael Toole, a minor under the age of twenty-one years, he, the said John Cain, knowing the said Michael Toole to be a minor, and not having the written order of his parents, guardians, or family physician therefor, contrary to the form of the statute in such case made and provided, &c. The defendant appeared to the indictment, and neither moved to quash it, nor demurred thereto, but plead not guilty, and upon the plea of not guilty, issue was duly joined. A jury, duly selected and sworn in the cause, after hearing the evidence, and receiving instructions from the court, by their verdict found the defendant guilty, and assessed his fine at twenty dollars. After the verdict, the defendant moved the court in arrest of judgment on the verdict of the jury, on the ground that the indictment does not show at what particular place in the county of Wood, the intoxicating liquors were sold. The court overruled the defendant’s said motion, and rendered judgment against the defendant for the fine assessed by the jury, and the costs, and rendered judgment, in addition to the payment of the fine and costs, that the defendant be imprisoned in the jail of the county of Wood, for the period of ten days, &c.
During the trial of the cause, the defendant’s attorney excepted to an opinion of the court, and a bill of exceptions to the opinion was taken, from which it appears that the State, to maintain the issue on its part, gave evidence to the jury, tending to prove that the defendant was a saloon keeper in the city of Parkersburg, in "Wood county, in the State of West Virginia, and that, on several occasions, he had, between the fourth of April, 1873, and the time of the finding of the indictment in this cause, sold to Michael Toole intoxicating liquors, and the State, to prove that the said Michael Toole was a minor, inquired,of_said Michael Toole, while he was on the witness stand, how old he was, to which he replied that he was not yet eighteen years old, and the State offered no other evidence to prove that said Michael Toole was an infant under the age of twenty-one years, except there was evidence given to the jury by the State, tending to prove that, on several previous occasions, the •defendant had refused to sell liquor to the prosecuting witness, Michael Toole, on the ground that said Toole was a minor; and the defendant, to maintain the issue on his part, gave to the jury, evidence tending to prove, that on three of the occasions when said Toole-had sworn he had bought liquor of the defendant, that none was, in fact, sold to him; also, that said Toole had said he would not have had the defendant indicted if he had not insulted his, the witness’, mother, when she went to him (the .defendant) to remonstrate with him about soiling his father liquor. Also, evidence tending to prove that the said witness, Toole, had represented to several parties, including the defendant, that he was of age; and also, evidence tending to prove that the said Toole, at the Parkersburg eity election, in January, 1874, had offered to vote; and it also appeared from the evidence, that both the father and mother of the said witness, Toole, were still living. And after the evidence was all
The first instruction the court refused to give, as asked, but modified it, and gave it to the jury as modified.
The second instruction the court gave as asked.
The third instruction the court refused to give to the jui7-
And the fourth instruction the court refused to give as asked, but modified it, and gave the instruction as modified.
To the refusal of the court to give the instructions asked, and the giving the first and fourth instructions, as modified, the defendant excepted.
The first question to be considered is, did the court err in overruling the defendant’s motion, made in arrest of judgment. The counsel for the defendant, to show that the court erred in overruling his said motion, cited in argument here, the case of Commonwealth v. Head, 11 Grattan R. 819, and Commonwealth v. Young, 15 Grattan, 664.
In the case first named, the syllabus is “An indictment for selling by retail, without a license, ardent spirits, to be drank where sold, must set out the place in the county where the sale is made. It is not sufficient to state the sale in the county.” Judge Samuels, in delivering the opinion of the court in the case, said: “An indictment or presentment should always allege the offence with so much fullness, and precision of description, that the defendant may know for what he is prosecuted, and thereby be enabled to prepare his defence ; and further, that the conviction or acquittal may be plead in bar of any future prosecution for the same offence. If we try the presentment before us, by this standard, it will be found defective. The grand jury intended to present an offence against the latter clause of the statute, chapter 38, section 18, page 209, Code. This offence is lo.cal in its na
In the last named case, the defendant appeared before trial, to the indictment, and moved to quash the same, and the court sustained the motion, and the commonwealth obtained a writ of error. We arc also cited by defendant’s counsel, to the case of The State of West Virginia v. A. J. Church, 4 West Va. R., 745. In that case it was held, “that a violation of the condition of the bond required in order to obtain a license to sell spirituous liquors, is a violation of the law relating to the revenue, and is a case in which the State may have a writ of error.
It is not error to sustain a demurrer to an indictment for a violation of the conditions of such bond, when the indictment does not allege that the violation occurred at the place the liquors were to be sold under the license.” In that cause, the indictment was founded on the twelfth section of chapter 32 of the Code of this State. The indictment alleged that the defendant was duly licensed to sell spirituous liquors, &c., but fails to aver in what county, or in what place, he was licensed to sell. The fifteenth section of chapter thirty-two provides, that every certificate to sell spirituous liquors, shall specify the house where they are to be sold, and a sale at any other place, shall be held to be a sale without license. The defendant, appeared and demurred to the indictment and the demurrer was sustained, and the State obtained a writ of error. This case was clearly decided upon the principles decided in the said causes in 11 and 15 Grattan. But the indictment now before us, is founded upon the first clause of the third section of chapter ninety-nine of the Acts of the Legislature of 1872 and 1873, pages two hundred and fifty-three, and two hundred and fifty-four.
The third Section is in these words: “It shall be unlawful for any person, or persons, by agent, or otherwise, to sell intoxicating liquors to minors, unless upon the written order of their parents, guardians, or family physicians, or to persons intoxicated, or to persons who
But it is further maintained by the counsel for the defendant, that, admitting all that is charged in the indictment to be true, still it does not amount to an offence under said ninety-ninth chapter of the Code of 1872 and 1873, because the seventh section of that chapter provides that: “For every violation of the provisions of the first, second and third sections of this act, every person so offending, shall forfeit and pay a fine of not less than twenty dollars, and be imprisoned in the jail of the county not less than ten days, nor more than thirty days, and pay the costs of prosecution,” and that the act charged in the indictment, cannot amount to an indictable offence, unless, the several acts declared by the first and second section each, of said chapter, be charged in the indictment to have been done or committed in connection with the said act, in the indictment m this case, mentioned. Or, in other words, that by the provisions of said seventh section, to constitute an indictable offence thereunder, the indictment must allege and
If we yield to the construction contended for by defendant’s counsel, it would be lawful for a person who had license, to sell intoxicating liquors to sell to a minor, and also to sell to any person behind screens, frosted
From what has gone before, it seems clear to me, that it was the purpose of the legislature, by the third and seventh sections of the said ninety-ninth chapter,-to make the sale of intoxicating liquors to minors, without having the order specified, an indictable offence, and that the indictment in this cause, does charge an indictable offence under said sections. When Toole was asked the question by the State, how old he was ? no objection was made by the defendent to the question, or to his answer thereto as being improper evidence. He answered, that he was not yet eighteen years old. This answer as I have stated, went to the jury as evidence, without objection, save an instruction asked after the evidence was closed.
At this day of general intelligence, I think it is not improper, in a case like this, to allow the minor to testify as to his age. It is perhaps true, that the evidence of the minor may not be so satisfactory, as to the fact,
The third instruction asked by the defendant, and refused by the Court, is in these words, viz : “ Unless it is proved beyond reasonable doubt, by the best evidence of which the case will admit, and the evidence of the witness himself is not such evidence, that the witness, Michael Toole, was at the time of the alleged selling to him of intoxicating liquor by the defendant, under the age of twenty-one years, they must find the defendant not guilty.”
It was in evidence before the jury, that the defendant on several previous occasions, had refused to sell liquor to the prosecuting witness, Toole, on the ground that Toole was a, minor.
The third instruction asked by the defendant, was well calculated to mislead the jury, and the Court did not err in refusing to give it, because of its liability to mislead, and because the statement of the witness, Toole, as to his age, was legal evidence for the consideration of the jury to have its proper weight.
The first instruction asked by the defendant is in these words, viz: “Unless the jury believe from the evi
The fourth instruction asked by the defendant, is as follows, viz: “In weighing the testimony in the case, the jury should consider all the circumstances of the case, and the declaration of the witness as to the motives that prompted the prosecution, and if from all the cir-custances of the case, the jury have any reasonable doubt that the defendant sold the liquor; that the liquor was intoxicating; that the witness, Toole, was a minor, and that the defendant Cain, knew he was a minor, they must find him not guilty.”
As I have already stated, the said first and fourth instructions the court refused to give, as asked by the defendant. The object of the third section of chapter ninety-nine, was evidently to, absolutely, prohibit the sale of intoxicating liquors to minors by persons licensed to sell spirituous liquors, or by any other person except under the circumstances specified in the third section. The persons who procure license to sell spirituous liquors, and use them, are fully aware of the prohibition and penalties for a violation thereof, and it is their duty to take care and to see that they do not sell intoxicating liquors to minors. They know by the provisions of said ninety-ninth chapter, they are, under penalties, forbidden to sell to minors without said order, and if they do so, they do it at their peril; that the seller may, sometimes, be deceived in information and judgment as to the age of a customer, as to his being a minor or not, is one of the perils he runs, and must encounter in obtaining and using the license granted. ’Whether the person licensed to sell intoxicating drinks, knew, at the time he made sale thereof, that the person to whom the sale is made is a minor or not, is immaterial under the law. If the customer is,
In the case of the State v. Hartell, 24 Wisconsin R. p. 80, it was decided by the Supreme Court of Wisconsin, in the year 1869, that “the sale of intoxicating liquors to a minor is an offence under section 1, chapter 128 laws of 1867, though the vendor does not know that the purchaser is a minor. In that case, Chief Justice Dixon, in delivering the opinion of the court, says: “The authorities cited by the assistant attorney general seem to leave no doubt as to the disposition which ought to be made of this case. The words ‘ knowingly’ or (wilfully,’ or other words of equivalent import, are omitted from the statute, and the offence is made to consist solely in the fact of a sale of intoxicating liquors, or drinks, to a minor. Laws of 1867, chapter 128, section 1. The authorities are to the effect that, where a statute commands that an act be done or omitted, which, in the absence of .such statute, might have been done or omitted without •culpability, ignorance of the fact, or state of things contemplated by the statute, will not excuse its violation. 3 Greenleaf’s Evidence, sec. 21; Barnes v. The State, 19 Connecticut, 398; Commonwealth v. Marsh, 7 Metcalf, 472; Commonwealth v. Boynton, 2 Allen, 160; Commonwealth v. Farren, 9 Id. 489; Commonwealth v. Waite, 11 Id. 264; Commonwealth v. Raymond, 97 Massachusetts, 567; Commonwealth v. Elwell, 2 Met. 190.”
In the case of the Commonwealth v. Patrick H. Farren, 9 Allen (Mass.) R. 489, it was decided that, “A person may be convicted of selling adulterated milk, under Stat. 1864, chapter 122, section 4, although he did not know it to be adulterated; and an averment in the indictment that he had such knowledge may be rejected as surplus-age.”
In the case of the Commonwealth v. Raymond, 97 Massachusetts R. 567, Judge Foster, in delivering the opinion
In the case of Ulrich v. Carpenter, 6 Bush. Kentucky R. 400, it was held by the Court of Appeals of Kentucky, that, “It is as incumbent on the vendor of liquor to know that his customer labors under no disability, as it is for him to know the law. Judge Peters, in delivering the'opinion of the court, in that case,'says: “ The law commands him not to sell liquor to minors, unless by the written consent, or request of the father of such minors, if living, or of their mother, or guardian, if the father be dead. It isas incumbent on the vendor of the liquor to know that his customer labors under no disability, as it is for him to know the law, and his ignorance of neither will excuse him. In the third volume of Greenleaf on Evidence, section 21, eighth edition, it is laid down by the author, that, “Ignorance, or mistake of fact, may, in some cases, be admitted as an excuse, as when a man, intending to do a lawful act, does that which is unlawful. Thus, where one, being alarmed in the night, by the cry that thieves had broken into his house, and searching for them with his sword, in the dark, by mistake, killed an inmate of his house, he was held innocent. So, if the sheep of A. stray into the flock of B., who drives and shears them, supposing them to be his own, it is not lar
In the case of Barnes v. The State, 19 Connecticut R. 397 top page, and 398 marginal page, it was decided by the Supreme Court of Errors of the State of Connecticut, in a prosecution for selling spirituous liquors to a common drunkard, that, “To sustain such. prosecution, it is not necessary to prove that the defendant Jcnew that the person to whom the liquor was sold, was a common drunkard. Where it appeared in such prosecution, that the sale complained of was made by the clerk of the defendant, and he offered evidence to show, that he had given such clerk specific directions to sell no liquors to common drunkards; it was held, that such evidence was admissible.” Judge Ellsworth, in delivering the opinion in the case just cited, says: “So we think the county court was correct in holding, that knowledge of one’s character, as a common drunkard, is not essential, to subject the offender to the penalty of the law. The language used is too clear and and too positive to be mistaken ; nor can we mistake the evil aimed at by the legislature. * * Can the ravisher plead ignorance? A female under the age of twenty-one years, is seduced, or is en
As to -whether the seller • intended to violate the law, or not, at the time of selling to the minor, is, under the authorities above cited, immaterial, except in mitigation of the punishment, for, if he made the sale to the minor, except under the circumstances stated in the third section, he is guilty of a violation of the prohibition of the section, and subjects himself to penalties of the seventh section of said chapter 1)9. If the legislature had intended that the seller of intoxicating drinks, whether licensed, or not, should only be subject to prosecution when he made sale to a minor, knowing that he was a minor, they would surely so have said in the law. But they have not said so, in said third section, and if they had so said, the law would manifestly have failed in a great degree to accomplish its manifest object. The conditions of the bond, with security required from persons licensed to sell spirituous liquors, &c., by the twelfth section of chapter 32, of the Code of 1868, and therein specially prescribed, is that he will not permit any person to drink to intoxication on any premises under his control, and will not sell or furnish any intoxicating drink to any person who is intoxicated at the time, or who is known to him to have the habit of drinking to intoxication, or who is under the age of twenty-one years. This condition of the bond, under said twelfth section, as to sales to minors, is substantially the same as the provision of the third section of said chapter 99, except as to said order. And the fortieth section of said chapter 32, of the Code of 1868, provides that “The provisions of this chapter, shall, in all cases, be construed as remedial, and not penal.” The thirty-second chapter of the Code, and the first, second, third and fourth sections thereof, contain the law of this State, mostly, if not altogether, upon the subject of selling, by retail, spirituous liquors, with and without license, as it
Whether said third section of said chapter 99, is inexpedient or unnecessarily harsh in its provisions, in whole or in part, is not for us to determine. That is a subject proper for the consideration of the legislature; it can modify or amend it at pleasure. Our duty is to construe and administer the law according to the purposes and intent of the legislature, as therein indicated, and not to make or amend the law. Although the court refused to give the first and fourth instructions asked by the defendant to the jury, as asked, still the court modified each of said instructions, and gave them to the jury as modified, as follows:
First, “Unless, the jury believe from the evidence that the defendant, John Cain, since the fourth day
“Fourth, In weighing the testimony in the case, the jury should consider all the circumstances of the case, and the declaration of the witness, as to the motives that prompted the prosecution ; and if, from all the circumstances of the case, the jury have any reasonable doubt that the defendant sold the liquor; that the liquor was intoxicating; that the witness, (Toole) was a minor, or had good cause to believe that he was a minor, from reasonable inquiry by him made, they must find the defendant not guilty.” These two- instructions, as modified by the Court, and given to the jury, are erroneous, and should not have been given for the reasons above stated. But it is clear that they were not prejudicial to the defendant, and could not, by possibility, have operated to the prejudice, or in the slightest decree have injured, the defendant with the jury. They were favorable to him, and if they had any effect with the jury, it must have been favorable to the defendant. And indeed the defendant’s counsel, in his argument before us, did not claim that the defendant could have been, or was injured, by the instructions as given by the court to the jury, and if he had, the court could not have so determined. The words “knowing the said Michael Toole to be a minor,” contained in the indictment, may be treated as surplusage, as they were unnecessary to complete the offence under said third section.
For the foregoing reasons, the judgment of the circuit court rendered in this cause, on the tenth day of June, 1874, against the defendant, must be affirmed, and the State of West "Virginia recover against the defendant, John Cain, her costs in this Court expended, and $30. damages.
Decree Affirmed.