Lead Opinion
Defendant assigns three errors presenting two questions for our decision:
1. Did the trial court commit prejudicial error in admitting
2. Is it necessary for the state to prove that the defendant knew that Mary Floyd was intoxicated in order to obtain a conviction of the defendant for selling liquor to an intoxicated person?
The complete charge of the tidal judge on the question as to the plea of guilty is as follows:
“Now the court again reminds you that as a matter of law the plea of guilty to this charge of intoxication by one Mary Floyd may be considered by you as evidence supporting the contention of the state — that she was in fact intoxicated at that time. However, you should consider that plea, together with all the evidence that you have heard here, in determining whether or not you are satisfied beyond a reasonable doubt that she was in fact intoxicated at the time this sale was purported to have been made.”
In Fisher v. State,
“The record of the conviction of the minor child upon a charge of delinquency was properly admitted in evidence as tending to show that she was a delinquent child, without proof of which the charge must fail no matter how culpable his acts may be, for if she had not become a delinquent then in the very nature of things he could not have contributed to her delinquency. It is the initial fact to be proven, and the fact to which the evidence offered in the case ought to be first directed, and upon failure of proof of this fact the defendant would have been entitled to his discharge. ’ ’
Although it may reasonably be argued that a conviction of intoxication is not an essential element of the offense of selling intoxicants to an intoxicated person, as contrasted with the necessity of conviction of delinquency as an essential element of the offense of contributing to delinquency, it is nevertheless axiomatic that one can not be guilty of selling intoxicants to an intoxicated person unless that person is in fact intoxicated. In any event, intoxication must first be proved.
We find no error, either in the admission of this evidence or in the instruction of the court thereon, that Avas prejudicial to the defendant. The other evidence, which we must assume was considered by the jury, amply bears out the conclusion of the Court of Appeals that “the record clearly reveals that Mary Floyd was in a high state of intoxication which Avas discernible to any ordinarily prudent person.”
The remaining question deals Avith the requirement of proof of scienter.
Section 4301.22, Revised Code, reads, in part, as folloAvs:
“Sales of beer and intoxicating liquor * * * are subject to the following restrictions # * *:
Í t # * #
“(B) No sales shall be made to an intoxicated person.”
Although guilty knowledge may be said, generally, to be an essential ingredient of crime, it is not always so. This court, in State v. Cameron,
‘ ‘ The instances in which it is not necessary to affirmatively aver such knowledge are those in which the declared purpose of the statute discloses the legislative intent to the contrary, as in the case of the sale of adulterated food.”
See, also, Meyer v. State,
The evils Avhich brought about tbe Prohibition era in this country were sought to be minimized upon the return of the legal traffic in intoxicants, and the legislative authority in its desire to control such traffic engrafted certain conditions upon the privilege it extended to engage therein. Those conditions
The injunction against the sale of intoxicants to an intoxicated person (Section 4301.22 (B), Revised Code) is couched in almost identical language to that which prohibits the sale of intoxicants to a minor (Section 4301.22 (A), Revised Code).
The authorities are numerous holding that “in a prosecution for selling liquor to a minor, under a statute which forbids or makes unlawful such a sale, but does not expressly or by clear implication make ignorance of minority a defense, the seller’s ignorance that the buyer was a minor, or bona fide belief that he was of legal age, is not available as a defense.” Annotation, 115 A. L. R., 1230. See, also, State v. Kominis,
The reasoning of courts supporting this view, which is the overwhelming majority view in this country, is aptly stated as follows by the court in State, v. Hartfiel,
“The act in question is a police regulation, and we have no doubt that the Legislature intended to inflict the penalty, irrespective of the knowledge or motives of the person who has violated its provisions. Indeed, if this were not so, it is plain that the statute might be violated times without number, with no possibility of convicting offenders, and so it would become a dead letter on the statute book, and the evil aimed at by the Legislature remain almost wholly untouched.” See, also, State v. Kelly,
We are unable, under Section 4301.22, Revised Code, to distinguish between the violation of selling intoxicating liquor to a minor and that of selling such liquor to an intoxicated person. The common good, in each instance, imposes a duty upon the seller to ascertain the status or condition of the person to whom the sale is made, and if he persists in the sale he does so at his peril.
In reaching this- conclusion, we are not unmindful of this court’s decisions in Miller v. State,
Although the Miller case has been noted by this court in several decisions, it has not been relied upon as establishing the requirement of scienter in a case of a sale of intoxicants to an intoxicated person, and only in the Aultfather case has it been relied upon as establishing such requirement in a case of such a sale to a minor. It is apparent that the court in the Miller case simply read the word, "knowingly,” into two sections of an act (“An act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio, ’ ’ 52 Ohio Laws, 153), the wording of which is almost identical with that of subdivisions (A) and (B) of Section 4301.22, Bevised Code, and did so without giving any reason therefor.
We are of the opinion that that portion of the decision in the Miller case is no longer in the mainstream of authority on this question or within the spirit of the present liquor-control laws, and that it should no longer be the prevailing law in Ohio.
The case of Crabtree v. State,
Judgment affirmed.
Concurrence Opinion
concurring. In the opinion of the Court of Appeals, it is stated:
"* * * even if it were erroneous [to admit the transcript of
Apparently, therefore, defendant in the Court of Appeals conceded that Mary Floyd was intoxicated and the Court of Appeals relied upon that concession in determining that the admission of the transcript of her plea of guilty and the instruction with respect to it did not prejudice the defendant.
Thus, if scienter is not an essential element of the crime charged against defendant, it is apparent that there could have been no prejudice to defendant in admitting the transcript of Mary Floyd’s plea of guilty and in instructing the jury about it. In effect, defendant conceded his guilt when he conceded that Mary Floyd was intoxicated at the time he admittedly sold intoxicating liquor to her. Hence, in deciding this case, it is likely that anything that is said with respect to the admissibility of the transcript of Mary Floyd’s plea of guilty will represent dicta.
The majority opinion and paragraph one of the syllabus state that the admission of the transcript of Mary Floyd’s plea of guilty and the instruction with respect to it were “not prejudicial error.” However, the mere fact, as paragraph one of the syllabus suggests, that there was other evidence that Mary Floyd was intoxicated at the time would certainly not be sufficient to prevent any error, with respect to admission of the transcript of that plea or the instruction about it, from being prejudicial. Perhaps, if there was a very substantial amount of other evidence with respect to Mary Floyd’s intoxication, as the majority opinion tends to indicate, then any such error would not have been prejudicial. If this is what is meant by paragraph one of the syllabus, it seems to me that it would be preferable to leave that paragraph out of the syllabus altogether, especially in view of the fact that the questions dealt with therein are, as hereinbefore suggested, probably not even before this court for consideration.
Mary Floyd’s plea of guilty of intoxication was admittedly only a statement by her that she was intoxicated at the time of the complained of sale of intoxicating liquor by defendant to her. Its only relevance in the instant case is as evidence of the fact that she was then, as she in effect said, intoxicated. As against defendant, who was not a party to the state’s ease against Mary Floyd
Such a statement would be admissible in another case against Mary Floyd as evidence of her intoxication on the ground that it constituted an admission by her. However, an admission by Mary Floyd would not be admissible as evidence against defendant. There is no evidence tending to prove that defendant authorized her to do anything for him. There is no evidence that defendant was even present at the time of the plea of guilty by Mary Floyd. Even if he had been, her admission of intoxication by her plea of guilty, when combined with his silence at her trial, would not amount to an admission by
“If present at that trial he [defendant here] would not have been permitted to examine Wallace and Baxter [Mary Floyd here] upon their pleas of guilty * * * nor introduce witnesses to prove that they [here Mary Floyd] were not in fact guilty of the offense charged against them. If he [defendant here] had sought to do either of those things — even upon the ground that the conviction * * * [here of Mary Floyd] might be taken as establishing prima facie a vital fact in the separate prosecution against himself [here defendant] * * * the court would have informed him that he was not being tried and could not be permitted in anywise to interfere with the tidal * * *.”
See also Bach v. State,
As the majority opinion recognizes, it was essential for the conviction of the defendant in Fisher v. State,
“The fundamental error in the trial below was to admit in evidence the record of the conviction [for theft] of the principal felons as competent proof for any purpose. That those persons had been convicted was a fact not necessary to be established in the case against the alleged receiver [of the property so stolen]; for, under the statute, he could be prosecuted even if the principal felons had not been tried or indicted * * *.”
Because of the doctrine of stare decisis, I would hesitate to join in overruling Miller v. State,
However, as pointed out by Fess, J. in the opinion in State v. Williams,
It may be observed that the court in Miller v. State, supra (
“We know of no case where positive action is held criminal, unless the intention [to do what the law prohibits doing] accompanies the act * *
If this court was correct in holding, as it did in State v. Kelly, supra (
The principal basic purposes of the doctrine of stare decisis are to provide equal treatment for all and certainty as to what the law is. Those basic purposes require that, where there are two irreconcilable lines of decisions and a court determines to follow one of them, it should affirmatively reject all that is inconsistent with what is being followed. In the instant case, the appellate courts in Ohio have already by their decisions regarded Miller v. State, supra (
Notes
See Kazer v. State, 5 Ohio, 280.
Cf. Summons v. State,
See Longsine v. State,
Concurrence Opinion
concurs in paragraph two of the syllabus and in the judgment.