Ollre v. State

• Decision Date: 23 June 1909
• Parties: OLLRE v. STATE.
• Court: Texas Court of Criminal Appeals

123 S.W. 1116

OLLRE v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1909.

Dissenting Opinion December 22, 1909.

Rehearing Denied December 22, 1909.

Appeal from Criminal District Court, Harris County; E. R. Campbell, Judge.

Albert Ollre was convicted of selling liquor on Sunday, and he appeals. Reversed and remanded.

C. E. & A. E. Heidingsfelders, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for violating what is popularly known as the "Baskin-McGregor Liquor Bill" (Laws 1907, p. 258, c. 138). Among other things, that act of the Legislature inhibits the selling of intoxicants by retail liquor dealers between the hours of 12 o'clock Saturday night and 5 o'clock Monday morning. The first count in the indictment charges appellant with having violated this provision of that act. The second count in the indictment charges, in a general way, that appellant was a merchant and dealer in goods, wares, and merchandise, to wit, a liquor dealer, and as such liquor dealer sold his goods on Sunday, to wit, a glass of beer to one E. E. Williams.

The evidence for the state, in substance, shows that on Sunday, the 6th day of September, somewhere about 2 or 3 o'clock in the afternoon, in appellant's saloon, one Walter Winner sold to E. E. Williams and others beer. The theory of the state is that Winner was the agent, clerk, and employé of appellant, and as such sold the beer to these parties in appellant's place of business on said Sunday evening. These witnesses swear that Winner sold them beer on the Sunday evening and for which they paid him. Appellant testifies that he closed his business house Saturday night at 12 o'clock and until 5 o'clock Monday morning, and so far as he personally knew it was not opened for business; that somewhere about 9 or 10 o'clock Sunday morning he and his family left the place and went into a different part of the city of Houston to spend the day with relatives, and were gone four or five hours. The sale alleged occurred during his absence. He says: These sales occurred, if at all, without his knowledge or consent, and that he in no way authorized such sales. That he had no bartender, and nobody but himself was authorized to sell. That he was spending the time he was absent from his place of business at his mother's and took the key to his house with him. That there was no key to the door of that part of the house where the beer was kept and sold, but that it was barred from the inside, and there is a partition between the beer apartment and that portion of the house where his family resides. That Winner was taking care of his place in his absence. That he secured him simply to look after his place and keep things straight, from being stolen and carried away, and to look after his place in a general way. That Winner was without authority to open his beer apartment or sell beer. He says: He did not have any beer there on tap. That it ran out about half past 11 o'clock Saturday night, and there was not a drop of beer there on Sunday as far as he knew, and that if Winner got any beer he did not know where he got it. That he himself did not get any beer for him, nor did he know whether Winner took in any money or not. That when he reached his place, after being informed of Winner's arrest, the door was wide open and the place open to the public. That he did not know whether any beer was sold or not, as he was not there. That he did not leave Winner there to do any business. Among other things, during the examination, appellant was asked the following questions, and made replies as follows: "Q. What did you have to do with him being convicted (referring to Winner)? A. It is my place of business, and I am responsible for what happens in my place of business. Q. You knew that when you left him there? A. That is why I told him not to sell anything. Q. You took a chance on that when you left him there? A. Yes, sir; I went away on Sunday lots of times and closed my place of business up and left him there. Walter Winner is a negro. He had never been working for me. I just left him there. I didn't pay him anything. He just stayed there for fun. He just stayed there because he wanted to, I reckon. My brother-in-law raised him, you know." This is perhaps a sufficient statement of the facts to bring in review the main questions in the case.

Section 19 of the Baskin-McGregor Act (Acts 30th Leg. p. 266, c. 138) reads as follows: "Every retail liquor dealer or malt liquor dealer, or other person who shall knowingly sell, give away or otherwise dispose of or suffer the same to be done, about his premises, any intoxicating liquor in any quantity, to any minor, without the written consent of the parent, master or guardian of such minor first had and obtained, or who shall have in his employ about his place of business, or who shall permit any minor to enter and loaf or remain in his place of business, shall be guilty of a misdemeanor," etc. Section 20 prescribes that "any sale, gift or other disposition of intoxicating liquors made to any minor without the permission or consent herein required or to any habitual drunkard or on Sunday or election day by any agent, clerk or other person acting for any retail liquor dealer or retail malt dealer, or other person, shall be deemed and taken to be for all purposes of this act, as the act of such retail liquor dealer or retail malt dealer, or other person." It will be noted from the reading of these two sections that from the first the owner or principal, or anybody about his premises with his knowledge and consent, etc., who shall disobey its provisions, shall be punished. That section 20 undertakes to punish any agent, clerk, or employé of such principal who does the inhibited things mentioned in said section 20, and also provides that the principal shall be punished for the act of the agent, clerk, or employé.

It is well known that section 20, above quoted, is practically the same as that known as the Missouri Dramshop Law. It was taken almost literally from that act and placed in our statute. The Missouri statute reads thus: "Any sale, gift, or other disposition of intoxicating liquors made to any minor without the permission or consent herein required or to any habitual drunkard by any clerk, agent or other person acting for any dramshop keeper, druggist, merchant or other person, shall be deemed and taken to be for all the purposes of this article as the act of such dramshop keeper, druggist, merchant or other person." Ann. St. Mo. 1906, § 3010. So by a comparison of this quotation from the Missouri dramshop law with section 20 of the Baskin-McGregor law, in so far as the essential principles and questions involved in this case are concerned, they are practically the same. Long prior to the passage of the Baskin-McGregor law the Missouri statute had received a well-settled construction by the courts of last resort of that state, and was thoroughly understood by the Legislature of Texas at the time of the adoption of the Baskin-McGregor law. In fact, it may be stated, as part of the history of that law, that Mr. McGregor, a member of the Legislature, whose name appears in connection with the law, came from Missouri to Texas, and was familiar with the working of what was known as the Missouri dramshop law, and was an eminent lawyer in that state, and, with his knowledge of that law and the construction placed upon it, he sought to ingraft, and did so successfully, these very provisions of the Missouri dramshop law upon the Texas statute. Wherever a statute has received judicial interpretation by which its terms and its words have been well settled or established as to their meaning and purpose and intent, it will be presumed that such interpretation was intended to be carried into the law when such law has been adopted by another legislative body. Munson v. Hallowell, 26 Tex. 475, 84 Am. Dec. 582; Morgan v. Davenport, 60 Tex. 230; Brothers v. Murdell, 60 Tex. 240; Sanders v. Bridges, 67 Tex. 93, 2 S. W. 663. In the case of State v. McCance, 110 Mo. 398, 19 S. W. 648, the Missouri statute, in an elaborate opinion by the Supreme Court of Missouri, was held to provide a rule that, where the agent, clerk, or employé sold, it would only be prima facie evidence sufficient to authorize a conviction of the principal; but the decision held the statute did not provide or require or permit that such evidence would be conclusive of the guilt of the principal. It might be rebutted. In other words, the rule stated by that court was to the effect that where an agent, clerk, or employé acting within the scope of his agency sold intoxicants in violation of the statute, the principal might be convicted if the case rested or stopped at that point of the evidence. In other words, it was held by this character of evidence the state had made out a prima facie case of sufficient cogency to authorize a conviction; but it was not held that such evidence would be conclusive and not subject to rebuttal. In other words, the principal would not be concluded by the mere fact that his agent or clerk or employé had sold in violation of the statute. He would have the right to meet this state of case, to show want of authority on the part of the clerk to make such sale, and that the sale was made in violation of his command, or without his knowledge. The decision, in substance, is that the principal could meet the state's prima facie case by want of knowledge on his part of the illegal act of his employé as well as by showing that he violated his authority or that the sale was not within the scope of his agency. This was a well-settled construction placed upon the Missouri statute at the time of the adoption of the Baskin-McGregor law by our legislative body, and the presumption is that our legislative body adopted the act with the purpose of giving the same effect to it here as had been given it in Missouri before its...