Klnnebrew v. State

• Decision Date: 26 October 1887
• Citation: 5 S.E. 56,80 Ga. 232
• Parties: KlNNEBREW v. STATE.
• Court: Georgia Supreme Court

5 S.E. 56

(80 Ga. 232)

KlNNEBREW

v.STATE.

Supreme Court of Georgia.

October 26, 1887.

1. Criminal Law—Accessories—Misdemeanors.

The rule of the common law that in misdemeanors there are no accessories before the fact, but that all who would be such in felonies are principals in misdemeanors, is still of force in Georgia.

2. Intoxicating Liquors—Illegal Sales—Liability as Principal.

A general authority by an employer to his clerk to sell unlawfully, will render him answerable criminally for any single sale made by the clerk in pursuance of such authority.

3. Same.

Whether a general authority from an employer to his clerk will suffice to render the former answerable criminally for an unlawful sale made by the latter, is a question of law; and it is also a question of law whether the jury would be legally authorized to infer the existence of a general authority from a given state of facts, the logical sufficiency of the facts to warrant the inference, and the existence of the facts themselves, being left to the jury for their determination.

4. Same—Illegal Sales—Nerve-Tonic.

The sale of nerve-tonic by the accused, or by his clerk under his authority and direction, is relevant, where there is evidence tending to show that nerve tonic is rye whisky.

5. Jury—Majority—Effect oe Opinion op.

It is not a law of belief in or out of the jury-box that truth is with the majority rather than the minority, though all who think they have it and try to declare it be equally credible.

(Syllabus by the Court.)

Error from city court of Atlanta; Van Epps, Judge.

Defendant Kinnebrew was charged with unlawfully selling liquor, and upon conviction brought error.

John C. Heed and lihetl & O'Bryan, for plaintiff in error. H. C. Glenn, Sol. City Court, and C. D. Hill, for the State.

Bleckley, C. J. 1. Whether or not the common-law rule that in misdemeanors there are no accessories before the fact, has been abrogated in Georgia by statute, is not settled by any decision heretofore made by this court. In Hately v. State, 15 Ga. 346, as appears both from the report and the original record, (which we have examined,) there was no evidence either that Hately was present or that he procured, counseled, or commanded his clerk to do the unlawful act which constituted the misdemeanor, or knew anything about it. Moreover, the judgment rendered by this court (which, as recorded on the minutes, we have also examined,) was put expressly upon the want of sufficient evidence on which to base the instructions given to the jury. There was certainly no occasion, therefore, for the member of the court who wrote out the opinion to distinguish between principals and accessories, or to say, as he said, in a head-note, that "he who procures, counsels, commands, or incites his clerk or agent to commit a crime, in his absence, is guilty as an accessory before the fact, and cannot be convicted upon an indictment which charges him with having jointly, with his clerk, committed the offense, as principal." "The head-note to a case, whether put there by the reporter or the judge who writes out the opinion, is so far law only as it is sustained by the judgment of the court in the case." Denham v. Holeman, 26 Ga. 182. Lumpkin, J., says, page 190: "While it is not true that the reporter puts the head-notes to the cases, it is true that the head-note is not law, except so far as it is warranted by the judgment of the court upon the facts of the case." That the obiter of Judge Starnes in Hately v. State has not been adopted, either by his contemporaries or his successors, is manifest. In Lewis v. State, 33 Ga. 137, by Lumpkin, J., the question is asked, "Was the charge of the court, that in misdemeanors there were no principals in the second degree, nor accessories, right?" And the answer is. We are inclined to think that our Code did not intend to change the common law in this respect." In McCoy v. State, 52 Ga. 289, by Tuippe, J., attention is called to Lewis v. State, but the case not requiring a decision upon the precise question, it was left undetermined. It was afterwards determined, however, as to a principal in the second degree, in Hansford v. State, 54 Ga. 55, in which the indictment charged several persons as the actual perpetrators, and that Hansford was "constructively present, aiding and abetting, and did then and there hire and procure the said [actual perpetrators] the assault and battery aforesaid, in manner and form aforesaid, to do and commit." Hansford demurred to the indictment because barred by the statute of limitations, because principals in the second degree are not recognized in misdemeanors, and because a principal in the second degree cannot be tried before the principal in the first degree. The last ground was obviously not good. Boyd v. State, 17 Ga. 194; Williams v. State, 69 Ga. 29 (7). The first ground was sustained by the court; and the second was ruled to embody a sound proposition, but one not available in the particular case, for the reason that the facts alleged as to Hansford made him a principal in the first degree. And it is plain that this consequence would ensue from the proposition itself; for if there can be no principal in the second degree in misdemeanors, then a person charged as beingpresent, aiding and abetting in the commission of a misdemeanor must be a principal in the first degree or nothing; and any description of him as "principal in the second degree, " would be, as the court held, mere surplusage. Though in its facts the case of Hansford is not a controlling authority, it is a guiding authority, on the present question; for a principal in the second degree is analogous to an accessory, and indeed was formerly denominated as accessory at the fact. We may well reason that if our Code does not in misdemeanors require the distinction between principals to be noticed, neither does it require to be noticed the distinction between principal and accessory before the fact. Code, §§ 4305, 4306, et seq.

The case of Faircloth v. State, 73 Ga. 428, though not perhaps demanding any deliverance on the subject, the person indicted having been present at the alleged sale by his clerk, and having contributed to its accomplishment, announces the rule of the common law touching accessories in misdemeanors. So does Groves v. State, 76 Ga. 814. Thus, every time the subject has been mentioned in the reports, so far as we are aware, since Hately v. State was decided, the tendency of the judicial mind has been away from the dicta promulgated in that case, and towards the common law. The reply we make to the learned historical argument with which the able counsel for the plaintiff in error favored us, is that had we been here "in the beginning, " and had he been here to make it, we should probably have yielded to it; but a contrary construction has so long prevailed, and so many hundreds, if not thousands, of cases have, in the superior court practice, been rested upon it, that nothing but the, clearest light of truth would now justify a repudiation of the common-law rule. Another consideration is that courts, even when they have the earliest and best opportunity, rarely struggle to get away from the common law, but delight in clinging to it like young children to the mother's breast. There certainly never has been in our statutes or codes any express abrogation of the rule with which we are dealing, and the safest and soundest adjudication we can now make is that there has been none by implication, and we so decide. What has been said disposes of the second and sixth grounds of the motion for a new trial, and also of the first objection to the charge of the court.

2, 3. Other objections to the charge were made, one of which was that it intimated an opinion as to what had been proved, and as to the guilt of the accused. In dealing with this objection, it is necessary to have before us the exact legal import of the instructions complained of, but not all of their exact language. I shall, therefore, for the sake of brevity, omit non-essential particulars in transcribing from the fourth ground of the motion for a new trial, and condense the substance as follows: "If the defendant kept a wine-room, and had nerve-tonic in stock, and himself sold it, the jury would be authorized to infer that he had it there for sale in the course of his business, and if a few days after he sold, his clerk sold some, the jury would be authorized to conclude, in the absence of proof to the contrary, that the clerk had a general authority from the defendant to sell it. A general authority is enough; specific authority to sell in the particular instance, or actual knowledge and formal permission touching that instance, need not be shown. Authority to the clerk may be inferred from the course of conducting business in defendant's wine-room, if known to him, so far as known to him, and if he himself, in the course of business, sold a particular liquor kept in his stock in trade, the jury may presume authority in the clerk to make similar sales, unless there is something in the facts and circumstances to rebut the presumption. If the defendant's clerk sold nerve-tonic, the fact, if it be a fact, that defendant himself sold nerve-tonic may be considered by the jury in determining whether the clerk acted under his authority." The central doctrine of this instruction is that a general authority by an employer to his clerk to sell unlawfully will render him answerable criminally for any single sale made by the clerk in pursuance of such authority. Undoubtedly this is sound doctrine. Moreover, any possible question as to its soundness is one of law, and not of fact. It is also a question of law whether the jury would be legally authorized to infer the existence of a general authority from a given state of facts. Certainly the logical sufficiency of the facts to warrant the inference, and also the existence of the facts themselves, ought to be left to the jury for their...