Buchanan v. State

• Decision Date: 30 November 1910
• Parties: BUCHANAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

112 P. 32

4 Okla.Crim. 645, 1910 OK CR 255

BUCHANAN v. STATE.

Court of Criminal Appeals of Oklahoma

November 30, 1910

Syllabus by the Court.

All persons who take part, participate, or engage in an offense are guilty as principals. It is immaterial as to whether they have any interest in or receive any financial gain from the commission of such crime.

The law of agency as applied in civil cases has no application in criminal cases, and no man can escape punishment when he participates in the commission of a crime upon the ground that he simply acted as agent for any party.

Any person who acts as a messenger or agent of the buyer in going after, purchasing, and bringing back prohibited liquors is thereby aiding and assisting in the sale of such liquors, and may be prosecuted and convicted for such sale. Reed v State, 3 Okl. Cr. 17, 103 P. 1070, 24 L. R. A. (N. S.) 268, overruled.

Appeal from Carter County Court; I. R. Mason, Judge.

W. A Buchanan was found guilty of violating the prohibitory law and appeals. Affirmed.

Champion & Champion and Harreld & Ward, for appellant.

Fred S Caldwell, for the State.

FURMAN P.J.

The defendant resided at Durwood, in Carter county, Okl. At the time of the trial of this case he was a notary public and clerk of the township in which he resided. He maintained an office in Durwood, in which he kept some books and stationery and such other things as are used in notaries' or township clerks' offices.

Lee York, a witness for the state, testified: That some time in November or December, 1908, one evening he met the defendant and asked him if he knew where the witness could get some whisky. The defendant replied that he did not know for certain, but that he would go and see. The witness handed the defendant 50 cents. This occurred in front of the defendant's building in the town of Durwood. The defendant went into his house and was gone three or four minutes. Soon afterwards some one came around from the back end of the building and handed the witness a one-half pint bottle of whisky. In about an hour after this the witness went to see the defendant again to get some more whisky. He gave the defendant $2, and the defendant went off after the whisky. That the witness waited as before. In three or four minutes some one came and handed two bottles of whisky to the witness. Chas. Vernon testified, on behalf of the state, that some time during November, 1908, the witness was at Durwood painting a school-house; that one night he was with the witness York when some one whom he did not know and whom he did not recognize came and handed York and himself two bottles of whisky; that the arrangements to get the whisky had been made by York; that they received the whisky at the door of the defendant's place of business. Defendant testified: That York asked him if he knew where he (York) could get some whisky; that he replied that he did not know where; but that he (defendant) might be able to get it for him. The witness York then gave the defendant 50 cents. That defendant went out and met a man who was in the habit of handling whisky and gave him the money and took the whisky and laid it on the counter of his (defendant's) store, and defendant did not know whether York received the whisky or not. The defendant denied absolutely that he had gotten any more whisky for York that night, as was testified to by the witness York. The defendant then requested the following instruction to be given the jury: "The court instructs the jury that if they believe from the testimony that the defendant was only assisting the buyer of the whisky in procuring the liquor, and acted only as the messenger and agent of the buyer in going and bringing back the liquor, and they further believe that the defendant had no interest in the liquor or in the price paid, and that he was in no way the agent or intermediary of the seller, then in that case he is not guilty, and your verdict should find him not guilty." The court refused to give this instruction, and the defendant excepted.

So far as numbers are concerned, the overwhelming majority of the adjudicated cases sustain the position taken by counsel for the appellant. In fact, so great is the unanimity among the appellate courts of the states to this effect that, when this question was first presented to us, we adopted the view that where the evidence shows that a defendant charged with the sale of liquor had no interest in the liquor sold or the money paid for it, but acted as a friend or agent of the person purchasing the liquor, he was not guilty under our statutes for selling intoxicating liquor. See Reed v. State, 3 Okl. Cr. 17, 103 P. 1070, 24 L. R. A. (N. S.) 268. Upon more mature reflection we have become satisfied that this court erred in the doctrine contained in Reed's Case. Section 2027, Snyder's Comp. Laws Okl., is as follows: "The rule of common law that penal statutes are to be strictly construed, has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." Under this provision of our statutes it is the paramount duty of the courts of Oklahoma to so construe the penal laws of the state as will most effectively secure their enforcement, where this can be done consistently with reason and justice. Section 4180, Snyder's Comp. Laws Okl., makes it unlawful for any person to sell, barter, give away, or furnish intoxicating liquor, except as provided for in said act. Section 2045, Snyder's Comp. Laws Okl., classifying parties to crimes, is as follows: "All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals."

Under the plain import of this statute all persons who aid and abet in the commission of a crime, or who in any manner are concerned in its commission, are principals, and may be prosecuted and convicted as such. Any person who is concerned in the commission of a crime, or who aids or abets in its commission, should not be permitted to screen himself from the penalties of the law upon the ground that he had acted as agent for another. If this were permitted, the law would become practically a dead letter, and It would be almost impossible to protect society against the devices and subterfuges of the "bootlegger," because each "bootlegger" could have first one and then another "go-between" who could successfully defend himself upon the theory that he was acting for the purchaser and not the seller. It is no answer to this to say that in such cases the question could be submitted to the jury that, if they found that this was simply a subterfuge, they could convict the defendant, because when this defense is made the jury could not arbitrarily pronounce it to be a subterfuge. The burden of proving beyond a reasonable doubt that it was a subterfuge would rest upon the state, and the cases would be few indeed in which such evidence could be obtained. It is therefore seen that to hold that a party charged with the sale of liquor can escape upon the ground that he was an agent of the purchaser would tend to defeat the law, rather than to secure its enforcement. Our law makes the sale of prohibited liquor illegal in the state of Oklahoma, except for certain specific purposes and in a certain clearly specified manner. It does not, however, affix any penalty to the purchaser at an illegal sale, and confines its penalties to the seller. When a person acts as the agent for another in purchasing prohibited liquor in Oklahoma, while such purchase is illegal, he does not thereby render himself liable to the penalties of the law; but when he goes further and aids and abets the seller by delivering or assisting to deliver such liquor, under section 2045, above quoted, he thereby assists in the commission of a crime and renders himself just as amenable to the law as the person who actually made the sale, upon the ground that he has aided and abetted in the commission of a crime. It is true that he may not himself have made a sale of liquor to the purchaser, but he has made himself a principal offender by participating in and having a guilty connection with the commission of the offense.

We are sustained in this by the Supreme Court of Mississippi in the case of Wortham v. State, 80 Miss. 212, 32 So. 50 in which that court said: "The appellant was indicted in the circuit court of Harrison county for the unlawful sale of whisky, and convicted. The facts were agreed to be that 'Charles Thames met the defendant in McHenry, in Harrison county, and asked him if he could get him a pint of whisky, and defendant told him that he could, and thereupon took 50 cents and went off and bought a pint of whisky from another person, not authorized by law to sell same, paying therefor the 50 cents given him by Thames, and that said liquor, so bought and delivered to Thames, was not the property of defendant, who was not interested therein, but was the sole property of the person from whom defendant bought same.' This instruction was given to the jury on the part of the state: 'The court instructs the jury that, if they believe the facts set out in the agreed statement, beyond a reasonable doubt, they will find defendant guilty.' This conviction is assailed upon the grounds: (1) Because the evidence, it is said, will not support a conviction; (2) the instruction is said to be erroneous. 1. The case here made by the agreed statement of facts is substantially the same as Wiley v. State, 74 Miss. 727 (21 So. 797). In every case there is a seller as well as a buyer, and a delivery of the whisky sold is an...