64 Ark. 586 | Ark. | 1898
(after stating the facts.) The question presented by the instruction above copied is, does the knowledge of the employee bind the principal, under the statute making the principal guilty if he knowingly permits gambling in his saloon or dramshop? Is the principal guilty if, without his knowledge or consent, the employee or bartender permit gambling in house of the principal where or in which his dramshop is kept? We think it clear, from the language of the statute, that he is not guilty in such case. Before he could be guilty, it would have to be shown that he knowingly permitted the gambling. This implies personal knowledge, and not the knowledge merely of his agent or employee. If the agent or employee permitted the gambling, without the knowledge or consent of his principal, the principal is not guilty of knowingly permitting it, for he did not know it; and the employee cannot bind his principal, especially for a criminal violation of the law.
In the case of Cloud v. State, 36 Ark. 151, which was a prosecution for selling liquor to a minor, this court held that “the general rule of law as to criminal agency applies. If the liquor was sold to the minor by the partner or clerk of the appellant^ in his absence, and without his direction, authority, consent, or approbation, he would not be liable, upon the general principle that a man is not responsible for the criminal acts of his partner or agent. They must answer for their own criminal misconduct.”
In Mogler v. State, 47 Ark. 109, and other cases decided since the case of Cloud v. State, supra, it is held that the fact that whiskey is sold to, a minor without the written consent of his parent or guardian by the bartender in the absence of the saloon keeper is no defense. This was because, since the decision of Oloud v. State, the statute had been extended so as to make it a misdemeanor to be interested in the sale of liquor to a minor “without the written consent or order of his parent or guardian.” Sec. 19, act of March 8, 1879, p. 38. In the case at bar there has been no such extension of the prohibition, and it must be confined to one who knowingly permits gambling in his saloon.
For the error of the court in instructing the jury as above set out, the judgment is reversed, and the cause is remanded for a new trial.