Hunter v. State
| Decision Date | 09 March 1895 |
| Citation | 30 S.W. 42 |
| Parties | HUNTER v. STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Franklin county; Jephtha H. Evans, Judge.
John Hunter was convicted of selling liquor without license, and appeals. Affirmed.
The defendant, John Hunter, was indicted, tried, and convicted, in the Franklin circuit court, Ozark district, for "selling liquor without license," and appeals to this court There are what purport to be two bills of exceptions in the case, one certified by the circuit judge, and the other by bystanders. But for the purposes of this decision there is no very great difference between them. The substantial facts are that the defendant desired to purchase a less quantity of whisky than the distiller from whom he wished to buy was authorized to sell. He therefore went among his neighbors, to solicit them to go in with him to make up a "keg" of five gallons,—the least quantity the distiller could sell,—taking their names, and the amounts they respectively agreed to take, and the amount of money each was required to pay, at the rate of two dollars per gallon; and, when the aggregate amount of all was five gallons, he went to the distiller, purchased a five gallon keg, had him carry it to an "old storehouse" in Mulberry, where, according to a previous understanding, he and all the subscribers were to be present for distribution, and perhaps payment. The evidence shows that defendant put a faucet in the keg when it arrived at the old storehouse, and then proceeded to draw off each one's share as he presented himself, and in this way the whisky was delivered to each of the subscribers. It does not affirmatively appear that defendant had any other interest in the whisky, or the sale thereof, than is suggested by the arrangement to procure it, which is set forth in the foregoing statement, or that he was acting for the distiller expressly.
Virgil Bourland, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.
BUNN, C. J. (after stating the facts).
It was settled by this court in the case of Foster v. State, 45 Ark. 361, that: It was contended by defendant's counsel in that case that defendant was the purchaser of the whisky, and not the seller; and that, since the act of buying liquor is not prohibited or punishable, he had not violated the law. It was also contended that defendant bought the whisky as a matter of favor to the minor; and also, as in this case, that defendant was not in any wise interested in the sale of the whisky, and that he simply gave his time and trouble, without any reward or remuneration. The offense in that case was selling liquor to a minor. There can be no doubt that the law's inhibition had been overridden. It was shown that the owner of the whisky was ignorant that the whisky he sold to defendant was really intended for another person, and he a minor; and the proof further showed that the very reason the minor procured the defendant to buy the whisky for him was to shield the saloon keeper from any trouble growing out of the transaction. The ignorance of the saloon keeper of the facts had doubtless the effect of relieving him from prosecution. But the defendant had aided and abetted in what the law denounced as, and declared to be, a crime, namely, "selling liquor to a minor." That being a misdemeanor, defendant, who had thus aided in its commission, was held to be a principal, and accordingly his conviction was sustained. The gravamen of the defense was, in fact, that there was no crime committed, because no one knowing the facts had in truth sold liquor to the minor. The ruling of the court was otherwise, however, and that, not only was there a crime committed, but he who had made himself a necessary instrument, through whom the minor had bought the liquor, was the guilty party. In other words, the evil thus entailed upon society could not thus be made to fail of the law's apprehension and correction by any sort of manipulation or legerdemain to deprive it of an apparent author, or to mystify the real responsibility for it. It is alleged, in effect, in the case at bar, that there has also been a violation of the law — a crime — committed, in this: that one Dock Cox and others, each and every one of them, became the purchaser of a quantity of whisky less than five gallons, procured from the distiller through the instrumentality of the defendant, neither one having authority to sell to said Cox and the others, or to any one of them, said quantity of whisky. As in the case of Foster v. State, supra, the defense in this case is that there was really no selling of liquor without a license; that defendant, on the contrary, was a buyer for himself and others, and not a seller, and that he had purchased five gallons from the distiller, —a quantity he had a lawful right to sell him, the defendant; that in fact there was no violation of the law in the transaction. Defendant also showed that he had no interest in the whisky other than as is shown in the evidence, and that he was not the agent or the employé of the distiller. Except a difference between the two acts constituting the alleged violations of the law, the facts in this case do not appear to be materially different from those involved in the Foster Case, above cited; and to our minds the principle governing each of the two cases is the same. The alleged offense in the one case was selling liquor to a minor, and in the other case was selling liquor without license; the owner of the liquor in each case being ignorant, or presumably so, of the final disposition of the same. In the Foster Case the defendant was held liable because he had aided the owner in committing the crime, although, as to the owner, it might not have been a crime, because of his ignorance of the design to sell to the minor. Now, since all aiders and abettors in misdemeanors are to be regarded as principals, Foster was held to be such, and was held punishable as the direct seller would have been.
The remaining inquiry is whether or not the sale of the whisky in the manner set forth in evidence was in fact in violation of the statute, as constituting a sale in less quantities than five gallons. Unless this sale would have been a violation of the statute on the part of the distiller, had he been cognizant of all the facts, and knowingly participated in it, there does not seem to be any reason why the defendant should be held liable; for his offense, after all, is the aiding and abetting the distiller to sell in violation of the law, and thereby becoming himself a principal offender. The distiller, having the privilege of selling not less than five gallons to one individual at one time, and that five gallons to be in an original package, is unable to find a purchaser for such a large quantity. He therefore, with the air of a coadjutor, procures subscriptions from a number of persons each to purchase a less quantity than the five gallons, — in fact, the aggregate quantity purchased by all to be the five gallons, — and the aggregate sum contributed by all to be deposited with the "go-between," to be paid for the package, and then the same to be subsequently divided among the several purchasers as their several subscriptions call for. The state, in effect, contends that this kind of a transaction would be a violation of the law, as being a mere device to avoid its penalties; and we think her contention is sound. To hold otherwise, in our opinion, would be but creating a means by which the prohibition against the seller would be rendered of non-effect and a mere dead letter on the statute books. It would enable persons most easily to cheat the law, deprive the government of her lawful revenues, and even infringe upon the privileges of those who have lawfully procured licenses to sell in quantities less than five gallons. If this would be true of the owner knowingly dealing in this manner under the rule in the Foster Case, the defendant is made liable, for it matters nothing that the owner is really guilty or not, for in that case this court said: Quoting further, but changing the language to suit the facts of the case: The appellant had the evil design of procuring a sale of liquor to each of several persons in a less quantity than five gallons, — a sale the owner had no lawful right to make; and his disclaimer of all profits in the transaction only goes to add the greater weight of truth to the theory we apply to the facts of this case. It is...
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