Monaghan v. The State

• Decision Date: 13 May 1889
• Citation: 6 So. 241,66 Miss. 513
• Court: Mississippi Supreme Court
• Parties: W. A. MONAGHAN v. THE STATE

6 So. 241

66 Miss. 513

W. A. MONAGHAN v. THE STATE

Supreme Court of Mississippi

May 13, 1889

April 1889

FROM the circuit court of Lee county, HON. LOCK E. HOUSTON, Judge.

Appellant a retail liquor dealer, was convicted of selling liquor to a minor. One Stovall, an adult, requested Beene, a minor, who was passing his home to tell the clerk of appellant to send him a quart of a certain brand of whisky. The minor did as requested, telling the clerk at the time that the whisky was for Stovall. He gave the clerk fifty cents which had been handed to him by Stovall for the purpose, and after obtaining the whisky left it at the house where Stovall had requested him to leave it.

The court declined to instruct for the defendant that these facts did not amount to a sale to the minor, but for the state gave an instruction to the effect that delivery of the whisky to the minor, whether for himself or for any one else, and receipt from the minor of the price, constituted a sale to the minor and rendered the dealer guilty under the statute.

Reversed and remanded.

J. L Finley, for appellant.

There was no sale to the minor. He was a mere errand boy. He was the agent of Stovall and so informed the clerk of appellant. If the whisky had been sold in this way, the minor, even if sui juris, could not have been made liable for the price, as he was the mere agent of a disclosed principal.

T. J. Wharton, acting attorney-general, for the state, commented upon the recent case of Commonwealth v. O'Leary, 143 Mass. 95, and the reasoning there employed, and conceded that it impressed him strongly with the conviction that the action of the court in this case upon the instructions was erroneous.

OPINION

ARNOLD, C. J.

The doubt suggested by the attorney-general, based on the decision of the supreme court of Massachusetts, in Com. v. O'Leary, 143 Mass. 95, 8 N.E. 887, in regard to the propriety of the action of the court in giving and refusing instructions, is well founded. The instruction for the state should not have been given, and that asked by the appellant should not have been refused.

Beene, the minor, acted merely as the agent of Stovall, the adult, in the matter. Beene informed the clerk, when he obtained the liquor, that it was for Stovall--it was paid for with Stovall's money, and was taken to the place designated by Stovall, and he received it without its being opened by the minor. These facts are shown by the state's witnesses, and they are not controverted.

In legal contemplation, the sale was to Stovall and not to Beene. Com. v. Lattinville, 120 Mass. 385; Siegel v. People, 106 Ill. 89; Young v. The State, 58 Ala. 358; Johnson v. The State, 63 Miss. 228; Com. v. Remby, 2 Gray 508.

To "sell" liquor to a minor is what is forbidden by the statute. Code, § 1115....