Page images
PDF
EPUB

known wishes, the defendant would not be liable for said sale; but the court refused to so instruct the jury.

The court charged that if Ingersoll was employed as the agent of defendant to sell intoxicating liquors according to law, and, in the course of said employment, did make the sale charged in the indictment, the defendant was liable therefor, though said sale was made in violation of his express and positive instructions. The defendant excepted to said exclusion of evidence, to the refusal to charge, and to the charge as given, and his bill of exceptions was allowed, signed, and sealed.

A verdict of guilty was returned against the plaintiff in error, and a fine was adjudged against him.

The case was brought before the District Court on writ of error, where it was reserved for decision by the Supreme Court.

The rulings of the court in excluding the evidence offered by the plaintiff in error, and in refusing to charge as asked, and in the charge as given, are assigned for error.

N. L. Johnson, for the plaintiff in error.

The language of the statute, "It shall be unlawful for any person or persons, by agent or otherwise, to sell," etc., clearly implies an act of the principal in effecting the sale. Can it be said that the principal sells, when the sale is made by the agent contrary to his wishes and instructions? But this question seems to be well settled by authorities.

If the proof rejected in this case had been sustained, there can be no pretense that the plaintiff incurred any moral guilt by the act of his agent. As a general rule, legal guilt is not different from moral guilt, in that both lie in the intention.1

The principal is not liable criminally for the acts of his agent, done without his authority or assent.2

The last case cited has an important bearing on the present, from the fact that the statute, on which the decision is founded, is similar to the Ohio statute, and this decision being prior to the date of the Ohio statute, it should be presumed that the Legislature intended our statute should receive the same construction. The reporter found neither name nor brief of counsel for State.

WHITE, J. The correctness of the rulings of the court below depends on the construction to be given to a provision of the act of May 1, 1854, providing against the evils resulting from the sale of intoxicating liquors.3

The provision in question declares that it shall be unlawful for any

Commonwealth v. Nichols, 10 Metc. 259; Miller v. State. 5 Ohio St. 275

Commonwealth v. Putnam, 4 Gray, 16; Commonwealth v. Nichols, 10 Metc. 259;

Parker v. State, 4 Ohio St. 563; Miller v. State, 5 Ib. 275; Barnes v. State, 19 Conn. 398. 3 S. & C., 1431.

person or persons, by agent or otherwise, to sell intoxicating liquors in the cases specified in the act.

To bring a person within the operation of the act, the elements which constitute the offense must attach to him. He must make the sale. It is immaterial whether he does it directly or indirectly. The object in using the phrase, "by agent or otherwise," was to show expressly and unequivocally that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale.

In giving construction to the statute, the court below applied the rule in civil cases, which holds the principal, as to third persons, liable for the acts of his agent done within the general scope of his authority, irrespective of actual instructions that were unknown to the person dealing with the agent. In such case, as between a principal and a third person dealing with the agent on the faith of his apparent authority, the law conclusively presumes the actual authority of the agent to be what it openly appears to be; while, as between the principal and agent, the extent of the actual authority may be shown.

The rule as to the conclusive effect of the prima facie, or apparent authority of an agent, ought not to be applied to the enforcement of a criminal statute where such statute is fairly susceptible of a different construction. The accused, in such case, has the right to rebut the presumption of prima facie agency, which the evidence makes against him by showing, if he can, that the criminal act was, in fact, committed without his authority and against his instructions.

Strictly speaking, the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who participate in the commission of such offenses are either principals or accessories. In offenses less than felony all are principals. But when it in fact appears that the person accused in no way participated in the commission of the criminal act, he ought not, by construction, to be made punishable for it.

Of course, the directions to the clerk or agent forbidding the sale must be in good faith to be of any avail. For however notorious or formal such directions may be, they can have no effect if they are merely colorable. The fact of agency is to be determined by the real understanding between the principal and agent.

Our holding in this case is sustained by the decision of the Supreme Court of Connecticut, and by that of the Supreme Court of Massachusetts.?

Judgment reversed, and cause remanded for a new trial.

1 Barnes v. State, 19 Conn. 399.

2 Com. v Nichols, 10 Metc. 299.

PRINCIPAL AND AGENT-SELLING ADULTERATED MILK - LIABILTY

OF AGENT.

STATE v. SMITH.

[10 R. I. 258.]

In the Supreme Court of Rhode Island, 1872.

1. An Indictment against S. charged that willfully, and unlawfully, he did have in his possession, with intent to sell and exchange, and did offer for sale and exchange, certain adulterated milk, to which water and other foreign substances had been added. Held, that evidence of the possession of such adulterated milk by a servant of S. with intent to sell or exchange the same was not sufficient to convict S. without other proof that the servant, in so having said milk, was acting for, and in accordance with, the will of his master, the said S.

2. Evidence of a Guilty Intent and a guilty knowledge on the part of S., held, not necessary to warrant a conviction, the intent of the act being that the seller of milk shall take upon himself the risk of knowing that the article he offers for sale is not adulterated.

Indictment under section 4 of chapter 829 of the statutes, which reads as follows: "Sec. 4. Whoever sells or exchanges, or has in his possession with intent to sell or exchange, or offer for sale or exchange, adulterated milk, or milk to which water or any foreign substance has been added, shall, for each offense, be punished by a fine of not less than twenty, nor more than one hundred dollars." At the trial of the case at the Court of Common Pleas for this county, at its March term, 1871, before Mr. Justice Burges and a jury, a verdict of guilty was rendered against the defendant, whereupon he alleged exceptions, which are fully stated in the opinion of the court,

Miner & Cooke, for the defendant, in support of the exceptions, cited State v. Luther.1

The Attorney-General, Millard Sayles, Esq., for the State, contra, cited Wharton's Criminal Law,2 2 Leading Criminal Cases,3 Commonwealth v. Farren, Commonwealth v. Nichols,5 Commonwealth v. Waite.6

DURFEE, J. The defendant has been found guilty on an indictment charging that, willfully and unlawfully, he did have in his possession, with intent to sell and exchange, and did offer for sale and exchange, certain adulterated milk, to which water and other foreign substances had been added.

On the trial in the Court of Common Pleas the counsel for the defendant requested the defendant to charge the jury, "that in order to convict the defendant there must be proof that adulterated milk, or milk to which water or any foreign substance has been added, was in the

[blocks in formation]

possession of the defendant, proof that it was in possession of his servant is not sufficient." The court refused to comply with this request, and the defendant excepted.

If the counsel meant by this request that the defendant could not be lawfully convicted without proof that the milk was in his own immediate possession, we think that the court did not err in refusing to comply with it. But, if he meant not simply this, but also, as the closing words seem to import, that in order to convict the defendant, it was necessary for the government to prove something more than the mere fact that the milk was in the possession of a person who was the defendant's servant, the exception raises a question which is entitled to more careful consideration. Giving the request this meaning, as we are inclined to do, the refusal would have left the jury to suppose that the defendant could be convicted upon the mere proof that the milk was found for sale in the possession of his servant, without any evidence to show that it was there with his consent or direction. Could a verdict rendered against the defendant, under such a view of the law, be sustained?

As a general rule, a master is not answerable for the criminal acts of his servant, unless such acts were done by the servant, not only while in his service, but also in pursuance of his commands, or, at least, with his acquiescence.1

To this rule certain exceptions have been made in the case of libel,2 and of nuisance.3 In a case where the master was engaged in the business of harboring or concealing smuggled goods, and the servant did an illegal act in furtherance of the business; 4 and in a case where a master baker directed the adulteration of his bread with alum, and the servant used the alum to such an extent as to make the bread unwholesome.5 But we do not find among the exceptions to the rule any case which is similar, in all respects, to the case now before us.

In the State v. Dawson, the defendant was indicted under a statute prohibiting any shop-keeper, trader, or other person from purchasing, by himself or any other person, directly or indirectly, corn, rice, etc., from any slave not having a ticket or permit to deal in them. It appeared on the trial that the defendant kept a retail store, and that a slave had been seen delivering corn to his clerk, who had the care of the store. The court held the evidence insufficient to convict the defendant, there being no proof that he was cognizant of the act of his clerk, or that he had given any general order or direction in pursuance of which the act was done. In Hipp v. State, an inn-keeper was indicted for selling whisky, in violation of a statute, to a man who was

[merged small][merged small][ocr errors][merged small][merged small]

intoxicated. It appears the sale was made by a person who acted as barkeeper, and the court charged the jury that, if the sale was made by a person left by the defendant in his tavern as barkeeper, the defendant should be convicted, even though the sale was without his knowledge. But, upon motion for new trial, it was held that the charge was erroneous, there being no proof that the sale was pursuant to any direction from the defendant.1

If under the statute under which this indictment has been found, a master can be convicted upon the mere proof of possession with intent to sell or exchange by his servant, then the master may be punished for an act in which he did not participate, but which was done contrary to his orders, and for the servant's own private gain. We are not prepared to adopt this view of the statute. In order to charge the master, when the milk is found in possession of a servant, we think there should be evidence, in addition to the proof of possession for sale or exchange by the servant, that the servant in having it so for sale or exchange was acting for and in pursuance of the will of the master, and that such being the proof, the master might be convicted, for in such a case the possession of the servant is in law the possession of the master. We think, therefore, that the court should have instructed the jury that proof of possession by the servant was not sufficient to convict the defendant; adding, of course, if there were other evidence tending to show that the servant, in having the milk for sale or exchange, was acting for and in pursuance of the will of the master, such further instructions as would enable the jury properly to decide in view of such other evidence.

The counsel for the defendant further asked the court to charge the jury that there must be evidence of a guilty intent on the part of the defendant, and of a guilty knowledge, in order to convict him, which requests the court refused. Our statute, in that provision of it under which this indictment was found, does not essentially differ from the statute of Massachusetts, and in Massachusetts, previous to the enactment of our statute, the Supreme Judicial Court had determined that a person might be convicted although he had no knowledge of the adulteration; the intent of the Legislature being that the seller of milk should take upon himself the risk of knowing that the article he offers for sale is not adulterated.2 We think our statute should receive the same construction, and that consequently the exceptions based upon the refusal of these requests should be overruled.

A new trial is granted for error in the matter of the first exception above considered.

New trial granted.

1 And see Barnes v. State, 19 Conn. 398.

2 Commonwealth v. Farren, 9 Allen, 489.

« PreviousContinue »