Harper v. State

• Decision Date: 28 June 1909
• Citation: 121 S.W. 737
• Parties: HARPER et al. v. STATE.
• Court: Arkansas Supreme Court

121 S.W. 737

HARPER et al. v. STATE.

Supreme Court of Arkansas.

June 28, 1909.

Appeal from Circuit Court, Sebastian County, Ft. Smith District; Daniel Hon, Judge.

George W. Harper and another were convicted of selling liquors to a minor, and they appeal. Affirmed.

Brizzolara & Fitzhugh, for appellants. Hal. L. Norwood, Atty. Gen., and C. A. Cunningham, Asst. Atty. Gen. (June P. Wooten, of counsel), for the State.

FRAUENTHAL, J.

The defendants, George W. Harper and C. P. Wilson, were convicted of the offense of selling ardent liquors to a minor in the Ft. Smith district of Sebastian county, and they have taken an appeal from that conviction to this court.

The evidence tended to establish the following facts: The defendants are licensed wholesale and retail liquor dealers doing business in the city of Ft. Smith, Ark. Christopher Russell is a minor, about 15 years old, residing at Warner, in the state of Oklahoma, a station on the Midland Valley Railway, 85 miles west of Ft. Smith. On September 17, 1908, Christopher Russell, seeing a circular advertisement of defendants, sent to defendants a letter, in which he made an order for one gallon of whisky. The letter is as follows: "Warner, Okla., September 17, 1908. Harper & Wilson: Enclosed you will find $3.00, for which please send me one (1) gallon of rock and rye whisky. I want 8 shorts. Be sure and send on the evening train to-day. Your customer, Christy Russell, Warner, Okla. Don't fail to send on evening train." The $3 sent in the letter was a sufficient amount to pay for the whisky and the charges for carriage from Ft. Smith to Warner. The defendants did not know Christopher Russell, and did not know that he was a minor. But they accepted the order, and on September 18, 1908, they delivered to the Midland Valley Railway, a common carrier, at Ft. Smith, Ark., the gallon of whisky duly addressed to Christopher Russell at Warner, Okl.; and at their request the carrier executed a bill of lading for the whisky, in which Christopher Russell was named as consignee. The whisky was shipped by freight train, and the defendants paid the freight. It appears that there is a passenger train leaving Ft. Smith on this railroad in the afternoon, and which arrives at Warner about 7 o'clock p. m., and that express packages are carried on this train, but ordinarily no freight. Christopher Russell got the whisky at the depot at Warner.

It is contended by defendants that they cannot be convicted of this offense of selling intoxicating liquors to a minor, for the reason that they did not know that Christopher Russell was a minor; that on this account they had no criminal intent, and therefore could not be guilty of a criminal offense. The statute under which the defendants were convicted provides that "any person who shall sell or give away either for himself or another, or be interested in the sale or giving away of any ardent, vinous, malt or fermented liquors * * * to any minor," shall be guilty of a misdemeanor. The words "knowingly or willfully," or words of like import, do not appear in this statute. The offense is complete when the sale is made to a minor, and the guilty intent is wholly immaterial. There are some courts that hold that in prosecutions of this nature the absolute good faith of the seller and his ignorance of the minority of the buyer is a good defense. But the principle adopted by this court and enunciated by Chief Justice English is that venders of intoxicating liquors are bound to "determine for themselves at their peril whether or not the purchaser is a minor; for, if they sell to one who is a minor, they are criminally liable notwithstanding they are actually ignorant of the fact and honestly believe that the person is of full age." Redmond v. State, 36 Ark. 58, 38 Am. Rep. 24; Black on Intoxicating Liquors, § 418. In the opinion delivered by Chief Justice English some of the reasons are given for that ruling and that determination of the effect of this statute. Those reasons appear to us manifest and sound, and the result of such ruling is to effect a proper enforcement of a public policy announced by this statute against the selling or giving away of intoxicating liquors to a minor. This decision has been followed by this court in a number of cases, and we can see no good or wholesome reason for changing it. Crampton v. State, 37 Ark. 108; Edgar v. State, 37 Ark. 219; Pounders v. State, 37 Ark. 399.

It is urged that inasmuch as the common carrier was the agent of the minor, and the liquor was purchased through such agent, in such event the defendants would not be guilty if they did not know, or have any reasonable grounds of knowing, that they were selling to a minor; and they cite Gillan v. State, 47 Ark. 555, 2 S. W. 185, to sustain that contention. But in that case the vender sold directly to a negro...