State v. WallenbergState v. Wallenberg
- Reporters:
- , ,
- Before:
- Dibell
The defendants were convicted of the sale of intoxicating liquor. They appeal from the order denying their motion for a new trial.
The defendants are father and son. Edward, the son, was 18 *252years old at the time of the offense charged. They lived on the father’s farm in Kittson county along thе Canadian border.
The state claims that the sale was made to the witness Lindеr. On June 30, 1922, Linder went to the farm in an auto driven by the witness Griffen. According to the testimony оf Linder, corroborated to some extent by Griffen, he bought a quart of moonshine without difficulty, for which he paid either $2 or $2.50 to Edward, who went somewhere and shortly, returned with the liquor.
The facts are entirely different, if the testimony of the two defendаnts is credited. They say that Linder came to the farm at the time stated; that he tаlked about buying cattle; that soon he claimed to be sick, and wanted whisky; that they told him they had ‘none; that he suggested that they must know some one in the neighborhood who had; that he besought Edward to get him a quart; that Edward refused; that his father did not want him to have anything to do with it; that finally Edward consented; that Linder gave him $1.50 with which to pay for the moonshine, and fifty cents for his trouble; that he went on his bicycle to the house of a neighbor a mile or so away and bought the moonshine, paying $1.50 for it with Linder’s money; and that he returned and delivered it to Linder, who, he says, “hired me to go and gеt it.”
The jury was not required to believe the testimony of the defendants. It was for it to sаy whether it was true. It was not required to believe the occurrence to bе as the two witnesses for the state said it was. It could adopt the theory of the state or of the defendants. If the testimony of the two state’s witnesses was true, thе defendants are guilty. The theory asserted by the defendants was excluded from thе jury on the ground that if true it would not avail as a defense.
The defendants requested this instruction:
“You are instructed that if yоu find from the evidence that the defendants or either of them acted in goоd faith as the agent of Alfred Linder to purchase the liquor for him, then there was no sale, and you will find the defendant not guilty.”
It was refused. The court charged as follows:
*253“The court instructs the jury that if you believe the tеstimony of the defendant, Edward Wallenberg, namely, that he was employed by Linder to get a quart of moonshine liquor whiskey for him and that he did so, then he is guilty. In other words, if the defendant, Edward Wallenberg, did what he told you he did on the witness stand, then he is guilty of this crime.”
Referring to the senior Wallenberg, the court charged:
“If you believe from the evidence in this case that Marion Wal-lenberg told Albert Lindеr when he asked for a bottle of liquor or moonshine that his boy could go and get Linder a bottle and that Edward did go and get a bottle, then the court instructs the jury that that would be a participation in the sale and the defendant, Marion Wallenberg, would be guilty.”
In State v. Provencher, 135 Minn. 214, 160 N. W. 673, Ann. Cas. 1917E, 598, it was held that the offense defined by the statute there under consideration, which was a prosecution for selling in a dry county, where all sales were prohibited, the term “sale” being defined by the statute as defined by our prеsent statute, Laws 1919, p. 537, c. 455, § 1, amended by Laws 1921, p. 589, c. 391, § 1, was in the sale, and not in the purсhase; that a purchaser committed no offense; and that one who at his solicitation, and as his hired agent, and with his money, and for his use, in good faith and not as a subterfuge or by way of evasion, bought liquor for him, did not commit the offense of sеlling.
With the law so construed, the legislature, in framing the statute of 1919, corresponding in gеneral to the Volstead Act, 41 Stat. 305, made no change in its definition of a salе. Our holding in the Provencher case is in harmony with authority. Not only is there an incongruity in hоlding a purchaser innocent, and his agent acting for him guilty of the same offensе, but the legislature might well enough conclude that good policy, favorable to prosecutions, requires that the seller alone be an offender under section 1. See State v. Baden, 37 Minn. 212, 34 N. W. 24; State v. Gesell, 137 Minn. 43, 162 N. W. 683. There is an offense of transportatiоn, it is true, under section 2, but it is not here involved. In some states, it may *254be noted, it is an offense to procure liquor for another, or to act as his agent in buying it. Our legislature does not think it wise to have it so. No reason occurs for .changing our present holdings. There was error in refusing to submit the claim of the defendants.
Order reversed.