State v. Hunt

29 Kan. 762 | Kan. | 1883

The opinion of the court was delivered by

Valentine, J.:

This was a criminal prosecution under the prohibition act of 1881. The case was commenced originally by the county attorney of Cherokee county directly in the district court, by filing an information containing five counts,, in four of which counts the defendant was charged with selling spirituous, malt, vinous, fermented and other intoxicating liquors, without having a permit therefor from the probate judge of said county; and in the fifth count he was charged with selling the liquors prohibited by the statute for other than mechanical, medical and scientific purposes.

The fifth count reads as follows:

“V. And the county attorney further informs the court, and avers that one A. J. Hunt, then and there in a certain frame building, on lot No. 8, in block No. 27, of the original plat of the city of Columbus, in the county of Cherokee and state of Kansas, on the 10th of November, 1881, and at divers times before that date, did willfully and knowingly and unlawfully sell, barter and give away spirituous, malt, vinous, fermented and other intoxicating liquors, for other purposes than for medical, mechanical and scientific purposes; contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.”

The case was tried before the court and a jury, and the jury found a verdict against the defendant upon all the counts of the information, and judgment was rendered accordingly. The defendant now appeals from that judgment. The defendant raises two questions, and two questions only, which are stated in his counsel’s brief as follows:

“First, That in the light of the testimony, the defendant could not be convicted under the first four counts of the information, or either of them; and, seeond, that the fifth count does not state a public offense.”

The defendant moved for a new trial, and filed other motions, and took exceptions, so as to properly raise these questions in the court below. We shall consider these questions in their order.

I. The records of the probate judge of Cherokee county show that C. A. Hunt filed the necessary petition, bond, etc., under § 2 of the prohibition act of 1881, for the purpose of obtaining a druggists’ permit to sell intoxicating liquors in accordance with the said act, and that she obtained such permit, and had the same at the time it is charged that the liquors in the present case were sold, and that she still had the same at the time of the trial in this case. The defendant in the present case, A. J. Hunt, testified on the trial that the C., A. Hunt to whom the said permit was issued was his wife; that she was the owner of the drug store in which said liquors were sold, and that she carried on the drug business in the building described in the information; and that he, the defendant, \yas doing business for her at that place, and for her benefit, and as her head clerk or manager; or, in other words, that she was the absolute owner of the stock and business, and that he was simply her clerk and managing agent. This evidence was uncontradicted. The question, then, presented under the first four counts of the' information, is simply this: Can a person who, as a clerk or managing agent, and who does not himself have a permit to sell intoxicating liquors, but who sells the same in a drug store, as the clerk or managing agent of a druggist who does own the drug store, and who has a permit to sell intoxicating liquors therein, be prosecuted and convicted for selling intoxicating liquors in such drug store without having a druggists’ permit therefor? This question we think must be answered in the negative; Where a druggist has a permit to sell intoxicating liquors, all his clerks and agents may sell the same in his drug store without violating the law; and this must be true, although the clerk or agent selling the liquor might be a general agent or general manager of the druggist for his whole drug business.

The counsel for the state cites a number of authorities upon this question, but we do not think that any of them have application to the present case. They simply go to the extent of holding that where a person acts as the clerk or the agent of another in selling intoxicating liquors for him in violation of law, and where neither the clerk nor the proprietor has any license authorizing such sale, that both, or either of them, may be prosecuted and punished for violating the law. This is undoubtedly the law; but it has no application to the case which we are now considering. Every person who aids, assists or abets in the commission of an offense, whether present or absent, whether as principal or proprietor, or general manager, or agent, or clerk, or servant, is liable to be prosecuted and convicted and punished for such offense. Nothing but innocence will excuse a supposed offender.

II. The second question has already been decided in this court, in the case of The State v. Shackle, ante, p. 341. The fifth count under the decision already made, states an offense, and under the evidence introduced in this case, the defendant was unquestionably guilty; and as he sold the liquors as the agent or general manager of his wife, his wife was also guilty, provided of course that she authorized the sales to be made as they were made, and for the purposes for which they were made; but so far as we are informed, she has not yet been prosecuted for the offense.

The judgment of the court below upon the first four counts of the information will be reversed, and a-new trial ordered; and upon the fifth count of the information the judgment of the court below will be affirmed.

All the Justices concurring.