80 N.J.L. 176 | N.J. | 1910
The opinion of the court was delivered by
The plaintiffs in error were indicted jointly for selling malt, vinous and spirituous liquors without a license.
The first two counts charge the illegal sale to certain individuals named therein; the third count charges the habitual illegal sale in accordance with section 74 of the Criminal Procedure act (Pamph. L. 1898, p. 894), while the fourth count charges a violation of the “Morris law,” approved April 10th, 1908 (Pamph. L., p. 221), amending the act Pamph. L. 1895, p. 750, and which in substance provides by section 1 a license fee of not less than $100 for beer bottlers or sellers of bottled
The second assignment of error is as follows:
Because the trial judge erred in saying in his charge “the state contends that there has been a violation of the statute inasmuch as they have peddled beer in the borough of Yineland, contrary to the statute and without a license,” thereby incorrectly and without any evidence to support it assuming that defendants had “peddled beer without a license.”
There was no assumption of fact in the portion of the charge quoted; the court was only stating what it understood the state claimed to have made out on the evidence.
Because the trial judge erred in charging the jury as follows: “A person sending an order to Charles B. Kind, in Atlantic county, whether accompanied with money or unaccompanied with the price, consummates the sale in Atlantic county, provided that the vendor, Charles B. Kind, does not assume any further duty regarding the goods sold. If Charles B. Kind assumed a further duty regarding the goods sold, such as the delivery of the goods at a'particular place, then he did not consummate the sale until the delivery of the goods at the designated place.”
There was no particular controversy about the facts. It is conceded that the evidence showed that Charles Kind conducted, and still conducts, a wholesale and retail establishment on Wheat road, in Atlantic county, being duly licensed by the court of Atlantic county for the sale of intoxicating liquors. Otto Kind was an employe of Charles Kind, hired at a daily wage to drive a wagon for his father and to deliver beer for him.
People in Vineland were accustomed to, and had for years been in the habit of, buying beer from Charles Kind, and during the period shown by the testimony the method of doing business was as follows:
The inhabitants of Vineland (which is without licensed hotels), when wanting beer, would place their order in an envelope addressed to Charles Kind, Wheat road, Atlantic county, accompanied by the money to pay for same, specifying the amount wanted. Upon receipt of this money and said order, which came by mail by rural free delivery service direct to his establishment on Wheat road, Atlantic county, Charles Kind would cause the beer to be delivered, usually by his son. Otto Kind, to the purchaser in Vineland.
This statement of facts is quoted directly from the brief of plaintiff in’ error. Particular sales, according to this practice, were duly testified to; and the question at the trial was whether the sales were made in Atlantic county, where defendant Charles Kind had a license, or in Cumberland, county, wherein Vineland is situate, and where he had no license. We
The remaining assignment of error challenges the instructions given to the jury as to the guilt of Otto Kind, the son of Charles Kind, and who drove the wagon and made the deliveries. The court charged:
“Now the agent, gentlemen, is as guilty as the principal in a misdemeanor of this character. In fact he is a principal. Now, Otto Kind, in delivering for his father, became as guilty of the violation of the law as his father, Charles B. Kind. If a man violates the law in a case of this character, his intention has little to do with the offence. If he violates a law in ignorance of it, he is still guilty of violating that law. The intent in this ease is not the test.”
Otto Kind’s connection with the sales was precisely the same as that of the defendant in Shuster v. State, supra, who was also the son and driver for the liquor dealer, and was the only person indicted. That Otto Kind aided and abetted Charles
This disposes of all the points that are properly assigned for error. The judgment will be affirmed.