Bell v. State

• Decision Date: 21 February 1910
• Citation: 125 S.W. 1020
• Parties: BELL v. STATE.
• Court: Arkansas Supreme Court

125 S.W. 1020

BELL v. STATE.

Supreme Court of Arkansas.

February 21, 1910.

Appeal from Circuit Court, Sebastian County; Daniel Hou, Judge.

H. O. Bell was convicted of selling liquor without a license, and he appeals. Affirmed.

C. T. Wetherby, for appellant. Hal. L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

FRAUENTHAL, J.

The appellant was convicted of the offense of selling liquor without a license in violation of section 5112 of Kirby's Digest, and seeks by this appeal a reversal of the conviction. The indictment in effect charged that the appellant did, in 1908, unlawfully sell and was interested in the sale of ardent and malt and fermented liquors in Jenny Lind, in the Greenwood district of Sebastian county, without first having procured a license therefor. The evidence tended to establish the following facts: The appellant was in 1908 engaged in the saloon business at Bonanza, which is in said Greenwood district a short distance from Jenny Lind, which is also located in said district; that he was the agent of the Cook Brewing Company; that at this time one Joe Peet was working for appellant and was employed in driving appellant's wagon in the delivery of beer and other liquors, and on a number of different occasions delivered kegs of beer in appellant's wagon in Jenny Lind. The prosecuting witness, who resided in "old Jenny Lind," as he called the town, or in "Jenny Lind," as the town is called by another witness, gave an order to Joe Peet for beer, and in a few days thereafter Joe Peet delivered the beer to him at Jenny Lind in the appellant's wagon and there received the payment therefor. Upon cross-examination this witness stated that Joe Peet told him he was then working and delivering the beer for appellant.

It is earnestly urged by counsel for appellant that there is not sufficient evidence adduced in this case to sustain the verdict of the jury. The owner or proprietor of a saloon is responsible for the illegal sales of liquor made by his servants and agents within the scope of their general employment; and under the above section of Kirby's Digest the employer is criminally liable if he makes an unlawful sale of liquor by such servant or agent, or if he is interested in such sale. As is said in the case of Robinson v. State, 38 Ark. 641: "The law says to persons wishing to engage in selling spirituous liquors, or to be interested in sales thereof: `You must be careful in the selection of your partners or servants, and watchful of their conduct in your business; for, if they make forbidden sales, you are responsible. You must see that sales in which you are interested are not made without license.'" Lewis v. State, 21 Ark. 209; Waller v. State, 38 Ark. 656; Edgar v. State, 45 Ark. 356; Mogler v. State, 47 Ark. 109, 14 S. W. 473.

But it is claimed that there is no proof that Joe Peet was the servant or agent of appellant. It is true that agency is a fact the proof of which must be made by the party affirming it; the declarations of the alleged agent are not admissible to prove the fact of agency, but it must be established by other evidence. Carter v. Burnham, 31 Ark. 212; Holland v. Rogers, 33 Ark. 251; Chrisman v. Carney, 33 Ark. 316; Howcott v. Kilbourn, 44 Ark. 213; Turner v. Huff, 46 Ark. 222, 55 Am. Rep. 580; Beekman Lbr. Co. v. Kittrell, 80 Ark. 228, 96 S. W. 988. But the fact of agency need not be proved by direct evidence. Any evidence which is otherwise competent and has a tendency to establish the agency is admissible, and it becomes then the province of the jury to pass upon the weight and sufficiency of it. Circumstantial evidence is competent to establish the fact of agency. 31 Cyc. 1661. The relation and connection between the principal and agent, or between the employer and servant, may be shown by facts and circumstances from which the relation may be inferred. Although it may not be directly proved that the alleged servant was employed or authorized to make the illegal sale, nevertheless, if the facts and circumstances introduced in evidence are sufficient to induce in the minds of the jury the belief that the relation of employer and servant did exist between the parties, and that the alleged servant was acting for the employer in the forbidden sale, then this would be sufficient to sustain a conviction. 23 Cyc. 256. In this case we think there was some testimony adduced from which the jury were warranted in finding that Joe Peet was in the employ of appellant when he sold and delivered in appellant's wagon the beer to the prosecuting witness, and that appellant was interested in the...