145 Wis. 86 | Wis. | 1911
Tbe plaintiff in error, after waiving a jury trial, was found guilty and sentenced to pay a fine of $100 under see. 460Id, Stats. (1898), for furnishing oleomargarine at a certain luncb counter in tbe city of Stevens Point to one E. B. Southard, a guest and patron at said lunch counter, without first notifying said Southard that tbe substance so furnished to him was not butter.
It is contended that tbe accused'believed tbe substance to be butter, was without evil intent, and did not furnish tbe substance within tbe meaning of tbe word “furnish” in tbe statute. Tbe 'facts shown are: The accused was a waiter in charge of a luncb counter owned and operated by tbe Wisconsin Central Eailway Company. He made requisitions upon some officer or employee of this corporation higher up in tbe scale of authority for tbe supplies to be consumed at tbe luncb counter, received them pursuant to such requisition, and delivered them to tbe patrons and guests as ordered by
Where for the purpose of delivering or selling to others one selects and collects together, with opportunity for examination, and thereafter delivers from such collection to guests or patrons, he may be said to furnish the substance so delivered within the meaning of this statute, although he acts only as the agent of the owner in the whole transaction. This rule is deduced from the statute in question and authorities collected in 4 Words & Phrases relating to the word “furnish” under various circumstances and applied to different legal relations. It is a legal commonplace that penal statutes prohibiting not merely the doing of a described act but the wilful, intentional, or malicious doing of such act, if they do not require the prosecution in the first instance to prove something more than the doing of the prohibited act, at least permit the accused to exculpate himself by showing that although he did the act he did not do it wilfully, intentionally, or maliciously. Where a particular intent is necessary to constitute the offense, as cmim.ns furandi in larceny or malice in murder, ignorance or mistake of fact without negligence on the part of the accused may be ground for acquittal. As one exercising due care who might hand to the thirsty wayfarer who called for water a liquid exactly resembling water, believed to be water but in fact a deadly poison, causing death, would not be guilty of murder. Or one taking and carrying away property belonging to another under the hon«est but mistaken claim that the taker had legal title thereto
Defendant fails to show that there was no Hnited States internal revenue stamp on this substance when he received it.
By the Court. — Judgment affirmed.