174 Ind. 545 | Ind. | 1910
Lead Opinion
Appellant seeks the reversal of a judgment convicting him of an unlawful sale of intoxicating liquor, and charges error in overruling his motions (1) to quash the affidavit, (2) for a new trial and (3) in arrest of judgment.
The material parts of the affidavit are as follows: That on August 13, 1908, at Spencer county, appellant “did then and there unlawfully sell to W. E. Clark, at and for the, price of twenty-five cents, a less quantity than a quart at a time, to wit, one-half pint, of intoxicating liquor, to wit, whisky; he, said Lindsay O. Walters being then and there the owner of a drug store where said intoxicating liquor was then and there sold and purchased, and said W. E. Clark not then and there having a written prescription of a reputable, practicing' physician, and said Lindsay O. Walters not then and there receiving a written prescription of a reputable, practicing physician.”
The charge is alleged to be insufficient because the full Christian name of the purchaser is not set out, his initials only being given.
Names of persons material to a criminal charge should ordinarily be fully stated in the pleadings; and under this rule an indictment containing only the initials of the given name of a defendant has been held fatally defective. Gardner v. State (1853), 4 Ind. 632; Burton v. State (1881), 75 Ind 477.
These cases come far short of sustaining the position assumed by counsel. Appellant kept whisky in stock for sale, as shown by the evidence, and, in his absence, entrusted the care and conduct of the business to Smoot. In the exercise of its police power, the State has prohibited the sale of intoxicating liquors, except under fixed restrictions. The regulations prescribed by law were designed by the legislature to subserve the public welfare. This purpose is dominant, and its attainment must not be sacrificed, although in special cases individual inconvenience and loss be sustained. Criminal intent is not an essential ingredient of the offense charged against appellant. The law prohibits all persons without license from selling liquor either directly or indirectly, and is explicit and mandatory. When appellant elected to engage in the sale of articles subject to legal restrictions, he did so at his own peril, and cannot escape responsibility for the nonobservance of such regulations, on the ground that he did not knowingly violate the law. Groff v. State (1909), 171 Ind. 547.
Overruling appellant’s objection to evidence of an alleged sale of liquor made in his absence by his clerk was not erroneous. Lehman v. District of Columbia (1902), 19 App. Cas. D. C. 217; Snider v. State (1888), 81 Ga. 753, 7 S. E. 631, 12 Am. St. 350; Noecker v. People (1879), 91 Ill. 494; State v. McConnell (1894), 90 Iowa 197, 57 N. W. 707; State v. Stewart (1850), 31 Me. 515; Carroll v. State (1885), 63 Md. 551, 3 Atl. 29; People v. Roby (1884), 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270; People v. Longwell (1899), 120 Mich. 311, 79 N. W. 484; State v. Kittelle (1892), 110 N. C. 560, 15 S. E. 103, 28 Am. St. 698, 15 L. R. A. 694; State v. Kinney (1907), 21 S. Dak. 390, 113 N. W. 77; State v. Constatine (1906), 43 Wash. 102, 86 Pac. 384, 117 Am. St. 1043; State v. Denoon (1888), 31 W. Va. 122, 5 S. E. 315.
The evidence, without conflict, showed that the sale of liquor was made, as charged, by appellant’s clerk, and the money therefor placed in the cash drawer. It is clear under the law, as heretofore declared, that the verdict was fully sustained by the evidence.
No error appearing, the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion.
I emphatically dissent from so much of the majority opinion in this case as upholds the doctrine as stated in Black, Intox. Liq. §370, namely: “It is held to be no defense to an indictment against the principal that the unlawful act was done without his knowledge or consent, or without his authority, or in his absence, or even that it was done in contravention of his express and tona fide ordei’s. ’ ’
The iixtroductory part of said section just quoted from is not set out in the majority opinion. If it had been, it would have fully disclosed that the author is dealing with statutes of sister states which have changed or modified the common-law rule in respect to the criminal responsibility of the principal for the acts of his agent. The section begins as follows: “It has been already mentioned that statutes enacted in several of the states have modified the common-law rule as to the criminal responsibility of a master for the acts of his servant or agent, so as to make him answerable in eases ■where he could not be held to liability without such statutory provisions.” Continuing the author says: “Under these laws [referring to the statutes previously mentioned], it is held to be no defense to an indictment against the prin
In this State, however, no such statutes exist as those referred to in the section just quoted. The general rule of the criminal law is that no person shall be held criminally responsible for the act of another, unless he counsels, commands, aids or abets therein, or procures its commission. In criminal offenses under the statutes of this State which are classed as misdemeanors — to which class the one at bar belongs — no person connected with the commission of such grade of offenses is regarded or held to be an accessory, but if guilty at all, his guilt is that of a principal offender. The rule, recognized and well settled in this jurisdiction, is that a person charged with having committed a criminal offense cannot be convicted unless it be proved on the trial that he either did the unlawful act charged in the indictment or affidavit, as the ease may be, or that it was done by his authority or consent, express or implied. This principle has been applied and enforced in numerous decisions of this court, arising out of alleged violations of statutes prohibiting the sales of intoxicating liquors. See Pennybaker v. State (1831), 2 Blackf. 484; Hipp v. State (1839), 5 Blackf. 149, 33 Am. Dec. 463; Wetzler v. State (1862), 18 Ind. 35; Lauer v. State (1865), 24 Ind. 131; Anderson v. State (1872), 39 Ind. 553; Hanson v. State (1873), 43 Ind. 550; O’Leary v. State (1873), 44 Ind. 91; Thompson v. State (1874), 45 Ind. 495; Wreidt v. State (1874), 48 Ind. 579; Lathrope v. State (1875), 51 Ind. 192. See, also, Wilson v. State (1898), 19 Ind. App. 389; Rosenbaum v. State (1900), 24 Ind. App. 510.
In the case of Pennybaker v. State, supra, the evidence disclosed that the wife of the accused made the unlawful sale of the intoxicating liquor in his absence and without his authority. It was held that, under the circumstances, the conviction could not be sustained.
In the case of Wetzler v. State, supra, the evidence showed that the liquor was sold in defendant’s barroom by his barkeeper, but there was no evidence tending to show that defendant was present when the sale was made or had any knowledge whatever of the selling when it was done. The court in that case held that the evidence was insufficient to sustain the conviction.
In the case of Lauer v. State, supra, appellant was prosecuted for selling intoxicating liquors to a minor. It appeared on the trial that the sale in question was made by his barkeeper without the knowledge or consent of appellant, either express or implied. It was held in that appeal that, under the facts, the conviction could not be sustained. In the course of the opinion Frazer, J., said: “We must not hold men responsible for crimes committed by others, without some proof that they either procured, counseled or advised their perpetration. ’ ’
In the case of O’Leary v. State, supra, the offense charged consisted of the sale of liquor to a person in the habit of becoming intoxicated. It was shown that the sale was by a barkeeper of appellant, in his absence, without his knowledge or consent, and against his express directions. It was held that under the facts the conviction could not be sustained.
The case of Thompson v. State, supra, arose out of the sale of liquor to a minor. The evidence disclosed that at the time the sale was made defendant was not within the State; that the liquor was sold by his barkeeper, and that it was. unauthorized by the accused. It was held that he could not be convicted.
The prosecution at bar, however, is founded upon section nine and one-half of the Nicholson law (Acts 1895 p. 248, §8334 Burns 1908). This section declares that “it shall be unlawful for any spirituous, vinous or malt liquors to be sold or given away in any drug store in any quantity less than a quart at a time, except upon the written prescription of a reputable practicing physician.”
It will be noted that this section, unlike section six of the act of 1873, supra, contains no declaration about its being unlawful for the liquor to be sold at a drug store by the proprietor thereof or his agent. The gist of the offense under §8334, supra, is the selling of intoxicating liquor in less quantity than a quart at a time, without the written prescription of a reputable physician.
The rule to which we have referred, as affirmed and enforced by the decisions of our own court, is applied and enforced by the great trend of decisions of the higher courts of
The case of Commonwealth v. Putnam, supra, was a prosecution of the principal for an unlawful sale of liquor made by his clerk or agent. It was held that the prosecution against the employer could not be sustained. The court in that appeal said: "The fact that the person selling was a clerk of the defendant, and that the defendant knew of the sale, was not sufficient. lie might have had knowledge and dissented, or forbidden it. There must be evidence from which the jury can infer the assent of the defendant.”
While it is true that in the case of Groff v. State (1909), 171 Ind. 547, a doubt is expressed in respect to the correctness of some things said by this court in cases arising out of the unlawful sales of intoxicating liquors made by servants or agents of their employer in his absence, and without his authority, nevertheless these cases were in no manner modified or overruled, the court only stating that it was not inclined to extend the principle therein announced in pure food cases.
The evidence in the case shows that appellant is a practicing physician and a duly licensed pharmacist or druggist; that he was the proprietor of a drug store situated in the town of Chrisney, Spencer county, Indiana; that AYlliam P. Smoot was in his employ as a clerk in his drug store; that at the
The sale of the liquor out of which this prosecution arises was made by Smoot, the clerk, in the absence of appellant. The sale was made to Willis E. Clark, a detective in the employ of the anti-saloon league, who went to appellant’s drug store to purchase whisky for the sole purpose of securing a prosecution.
In view of the decisions of this court, to which we have herein referred, holding that the conviction of a person charged with having made an unlawful sale of intoxicating liquor eannot be sustained where the unlawful sale was made by his agent or servant, without his authority or consent, it would be unreasonable to suppose that the legislature, in the absence of any declaration to the contrary, intended that a different interpretation should be accorded to the present liquor laws enacted since these decisions were given.
The case of Groff v. State, supra, does not support the majority holding. It is better that well-settled rules of our criminal law be inflexibly maintained, instead of bending or modifying them to sustain some particular ease. It is the wrong decision of to-day which becomes the bad precedent of to-morrow.