Mullinix v. People of State

• Decision Date: 31 January 1875
• Parties: GEORGE W. MULLINIXv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

76 Ill. 211

1875 WL 8174 (Ill.)

GEORGE W. MULLINIX

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Moultrie county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. CREA & EWING, and Mr. JONATHAN MEEKER, for the plaintiff in error.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error was indicted in the Moultrie circuit court, for selling intoxicating liquor to one Harding, “a person in the habit of getting intoxicated.” There were several counts in the indictment. On a trial the jury found the defendant guilty, on the first and second counts. After overruling a motion for a new trial, the court sentenced accused to be imprisoned, for twenty days, in the Shelby county jail, and rendered a judgment for a fine of $80, and costs. To reverse the judgment, this writ of error is prosecuted.

It is first objected, that the court below erred in giving for the prosecution this instruction:

“The court instructs the jury, for the people, that, under the law, a person who is in the habit of drinking intoxicating liquors intemperately, is a person who is in the habit of getting intoxicated, within the meaning of the statute.”

We can hardly see the necessity of giving such an instruction. It would seem only necessary to instruct the jury, in the language of the statute, what constitutes the offense, and leave the jury to determine whether the person was in the habit of getting drunk. The word “intoxicate,” means to become inebriated or drunk, but intemperance does not necessarily imply drunkenness. It is defined to be the use of anything beyond moderation--use beyond moderation. Hence this instruction was not precise and definite. It told the jury, in effect, that if Harding used intoxicating liquors beyond a moderate use, he was a person named in the statute to whom liquor could not be lawfully sold. As to what would be a moderate use, intelligent persons widely differ. The instruction may have misled the jury, and should not have been given.

It is next urged, that the court below erred in telling the jury that if plaintiff in error, by himself, agent or clerk, sold intoxicating liquor to Harding within eighteen months from the finding of the indictment, and that he was in the habit of getting intoxicated, they should find defendant guilty.

It is first objected, that the owner of the liquor can not be rendered liable unless he has knowledge that the agent or clerk would make the sale, or he had given authority to make the sale. The 14th section of chapter 43, R. S. 1874, expressly declares that it shall not be necessary to show knowledge of the principal, to convict for an act of the agent or servant. But, it is said, this provision was not in the law as it was first passed, but was inserted for the first time in the revision of 1874. But under the act as it was originally adopted, we have no doubt that the principal was liable for the acts of his agent or servant, although he had no knowledge. He employed the clerk to sell the liquor, and, in doing so, it was his duty to see to it that the clerk was prudent and discreet, and would observe the requirements of the statute. He could not employ a reckless person, who had no regard for the law, and then shield himself by saying he did not know that the servant was violating the law.

To permit such a defense would be a virtual repeal of the statute. It would be only necessary for the keeper of a dram shop to employ such a servant, and avoid seeing or knowing that he was violating the statute, to escape the punishment imposed.

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