135 Minn. 214 | Minn. | 1916
Lead Opinion
The defendant was convicted of selling intoxicating liquor within a dry county. He appeals from the order denying his motion for a new trial.
In State v. Ito, 114 Minn. 426, 131 N. W. 469, 35 L.R.A.(N.S.) 619, Ann. Cas. 1912C, 631, we held that one who in good faith as agent of another purchased intoxicating liquor for him was not criminally liable. This was a prosecution under an ordinance of Minneapolis directed against those who without a license “sell, vend, deal in, or dispose of any spirituous * * * liquors.” The reason he was not liable was that he did not sell, deal in or dispose of intoxicating liquor. He was concerned in the transaction only as agent of the buyer. In State v. Baden, 37 Minn. 212, 34 N. W. 24, the court said: “The section of the statute under which this prosecution is brought is directed against the seller, not the purchaser.” The penalties of the local option statute (Laws 1915, p. 30, c. 23, §13), are directed against “every person, company, corporation, club, association or society, directly or indirectly, either'personally or by clerk, agent or employee, who shall sell or store or have in possession for sale, or shall solicit, receive or take any orders for intoxicating liquor,” etc. By section 1 the terms “sell” and “sale” are given the meaning prescribed in G. S. 1913, § 3188 (R. L. 1905, § 1564), which is as follows: “The terms ‘sell’ and ‘sale’ shall include barters, gifts, and all means of furnishing liquor in violation or evasion of law.”
It is the general doctrine, though not quite universal, and with it the Minnesota rule is in accord, that purchasers or their actual and good-faith agents are not within the penalties of liquor statutes, and that they are not accomplices or abettors in the illegal sale. Black, Intoxicating Liquor, §§ 380, 381, 408; 2 Woolen & Thornton, Int. Liq. §§ 701, 706, 719, 730; 23 Cyc. 182; note to State v. Cullins, 53 Kan. 100, 36 Pac. 56, in 24 L.R.A. 212; note to Reed v. State, 3 Okl. Cr. 16, 103 Pac. 1070, in 24 L.R.A.(N.S.) 268; note to State v. Lynch, 81 Oh. St. 336, 90 N. E. 935, in 28 L.R.A.(N.S.) 334. If one’s connection with an illegal sale is only as agent of a purchaser, he is not a criminal for his principal is innocent. If his connection with the transaction is such that he is agent of the seller, he is liable, for his principal is a criminal, and the agent in a criminal act is not innocent. The rule that an agent
In a few cases it has been held that the agent of a purchaser in dry territory is so much of a participant in the illegal sale that he is criminally responsible. People v. Lapham, 162 Mich. 394, 127 N. W. 366; Buchanan v. State, 4 Okl. Cr. 645, 112 Pac. 32, 36 L.R.A.(N.S.) 83. There may be other like holdings. In Mississippi a statute similar to our statute relative to purchases for minors brings the same result. Ann. Code Miss. 1892, § 1604.
The legislature enacted the local option statute with our own decisions as well as the general trend of the authorities in mind. It knew that the general policy of the liquor statutes was to make the seller criminal and not the buyer, and to make the agent of the seller liable, but not one acting in good faith for the buyer except in the case of a sale to a minor. We do not find a legislative purpose to make the result different under the local option statute. If such had been its purpose it would have evidenced it. In Wakeman v. Chambers, 69 Iowa, 169, 28 N. W. 498, 58 Am. Rep. 218, the court said: “As the prohibitory statute does not pro
The evidence was such as amply to justify a finding that the defendant sold the intoxicating liquor to Bell. It was sufficient to sustain a finding
Order reversed.
Dissenting Opinion
(dissenting).
Defendant, a night clerk in a hotel, is charged with the unlawful sale of whiskey in a “dry” county to one Bell. He himself gave this version of the affair:
“He asked me if I could get him some whiskey. I told him I would have to go out and see if I could find a fellow. He asked me how much it was and I told him a dollar, and he * * * says here is $1.15 * * * He says what time can I get it; I says come around later. And I went*219 out about 10 o’clock and got the bottle of whiskey for him, and I came back to the hotel and put it down stairs at the end of the hall until he came back and got it.” He further testified that he got it from a “boot legger” on the street; that he had gotten some before at the same place and knew he had it for sale.
The trial court instructed the jury that this explanation was not a defense. The propriety of this instruction is the specific and only question in the case. The majority opinion holds that the instruction was wrong. From this I respectfully dissent. The act plainly and unequivocally described by defendant is either lawful or unlawful. We are not dealing with disputed facts or disputed inferences from facts. A jury might perhaps infer that defendant was not telling the truth and that he had the liquor on hand for sale. We are not interested in that phase of the case. The question is, assuming defendant’s testimony to be strictly true, was the charge right? In my opinion it was.
T fully agree that the county option law is aimed at the seller and not at the buyer. The statute makes it unlawful for any person in a “dry” county to “sell or * * * solicit, receive or take any orders for intoxicating liquor.” The question is what is meant by the term “sell.” The statute adopts as the meaning of the word “sell” the definition given in G. S. 1913, § 3188, which provides that the term “sell” shall include <fbarters, gifts, and all means of furnishing liquor in violation or evasion of law.” It is not necessary to determine whether the transaction described by defendant constituted a sale by him in the ordinary sense of that term. The prohibition of the statute is broader and extends to transactions other than ordinary sales. It prohibits the “furnishing” of liquor and taking orders therefor. It seems clear to me that a hotel proprietor or clerk, in dry territory, who acts as middleman between the “boot legger” and the consumer in effecting an unlawful sale of liquor and in conveying the same to the customer, both furnishes the liquor to the customer and takes his order therefor. He is surely a very important factor in the accomplishment of the unlawful transaction, and to permit him to be absolved from liability on any theory is, in my judgment, contrary to the plain meaning of the law, and will go far to defeat its purpose. The proposition that this is a furnishing of liquor is well sustained by authority. Burnett v. State, 92 Ga. 474, 17 S. E. 858; Commonwealth v.
In People v. Lapham, supra, the question arose on an instruction much the same as that given in this case, applying a similar statute to a similar state of facts. The instruction ivas held proper.
In State v. Hassett, supra, the court, in discussing a transaction like this one, said: “If it ivas his own he went and got, the transaction was a sale; if he bought it of another, procured it for the witness and took it to him, it was a furnishing.”
Most, if not all, of the authorities cited in the majority opinion are cases construing the word “sell” or “sale,” under statutes Avhieh do not define the term as does our statute. In Partin v. Commonwealth, 140 Ky. 146, 130 S. W. 968, particular attention is called to this distinction.
State v. Ito, 114 Minn. 426, 131 N. W. 469, 35 L.R.A.(N.S.) 619, Ann. Cas. 1912C, 631, was a prosecution under an ordinance of the city of Minneapolis, the language of which does not embody the significant Avords of the statute. Neither Avas that a case of a sale in “dry” territory, and the defendant might have procured the liquor from a laAvful dealer. The defendant in this case did not do that. This fact is considered important in some cases. See Wortham v. State, 80 Miss. 205, 32 South. 50, Avhere the pungent remark is made that “there are no agents in the violation of laAV.”
Dissenting Opinion
(dissenting).
I dissent. A bottle of whiskey could not be lawfully purchased in the county in question. The sole scope and purpose of the claimed agency was to procure some one to make a sale in violation of law. An agency for such a purpose, to my notion, cannot be a good-faith agency, as a matter of law.