People v. Falk

• Decision Date: 19 December 1923
• Docket Number: No. 15527.,15527.
• Citation: 141 N.E. 719,310 Ill. 282
• Parties: PEOPLE v. FALK.
• Court: Illinois Supreme Court

310 Ill. 282

141 N.E. 719

PEOPLE

v.FALK.

No. 15527.

Supreme Court of Illinois.

Dec. 19, 1923.

Error to Rock Island County Court; George D. Long, Judge.

Gust Falk was convicted of the sale of intoxicating liquor, and he brings error.

Reversed and remanded.

Peter R. Ingelson and Kenworthy, Dietz, Shallberg, Harper & Sinnett, all of Moline, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Benjamin S. Bell, State's Atty., of Rock Island, George C. Dixon, of Dixon, and Edward L. Eagle, of Rock Island, for the People.

STONE, J.

Plaintiff in error, together with Alfred Grannath, was tried on an information of three counts filed by the state's attorney of Rock Island county for violation of the Illinois Search and Seizure Act (Smith-Hurd Rev. St. 1923, c. 43, §§ 51-73). The first count charged unlawful possession of intoxicating liquor, the second count charged possession of the same for purpose of sale, and the third count charged the sale thereof. Grannath pleaded guilty, and the trial proceeded as to the plaintiff in error, who was found guilty on the third count of the information.

The people's evidence showed that on January 20, 1923, certain officers raided a socalled soft drink parlor in the city of Moline, operated by plaintiff in error, and found a jar of home-made whisky; that prior to that time both the plaintiff in error and Grannath, who worked for plaintiff in error, had sold whisky to witnesses for the state. Plaintiff in error denied having sold any liquor, and testified that he was conducting a soft drink parlor and restaurant; that the restaurant was not connected with the soft drink parlor; that he ran the restaurant, and Grannath ran the soft drink parlor. On the trial, plaintiff in error sought to show that he had instructed Grannath not to sell liquor, and that he had no knowledge of the sales made by Grannath which were testified to by the state's witnesses. The court refused to admit the testimony on the ground that by section 23 of the Search and Seizure Act (section 73) such testimony was not material. Plaintiff in error offered instructions telling the jury that proof of notice to or consent by him was essential to liability on his part for sales made by Grannath as his agent. The court refused these instructions, and by instructions 7 and 19 offered by the people told the jury that proof of notice to the principal of such acts of his agent was not necessary. The contention of the plaintiff in error here is that section 23 of the Search and Seizure Act is unconstitutional and void, for the reasons that it deprives the accused of his liberty without due process of law, denies him the constitutional right of trial by jury, and invades the judicial department of government, by prescribing a rule of evidence that deprives the accused of the presumption of innocence, and places upon him the burden of showing that he is not guilty.

[1][2][3] It may be said at the outset that it is not within the legislative power to declare what would be conclusive evidence, as that would be an invasion of the power of the judiciary. People v. Rose, 207 Ill. 352, 69 N. E. 762. It is only in a clear case, however, that the court will declare an act of the Legislature to be unconstitutional. Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991,35 L. R. A. 176, 54 Am. St. Rep. 447. Courts will uphold an act, if it can reasonably be done. People v. McBride, 234 Ill. 146, 84 N. E. 865,123 Am. St. Rep. 8214 Ann. Cas. 994.

[4] Section 23 of the Search and Seizure Act (Laws 1919, p. 944; Smith-Hurd Rev. St. 1923, c. 43, § 73) provides, in so far as it affects the question here, as follows:

‘In all prosecutions and proceedings under this act, by indictment, information, complaint or otherwise, it shall not be necessary * * * to show the knowledge of the principal to convict for the acts of an agent, clerk or servant.’

So far as we are advised by the briefs of counsel and by investigation, the constitutionality of this or a similar section has not been passed upon by this court or the courts of other states. This court has, however, construed similar provisions of the Local Option and Dramshop Acts (Smith-Hurd Rev. St. 1923, c. 43, § 74 et seq.; Id., § 99 et seq.). In Noecker v. People, 91 Ill. 494, the charge was selling intoxicating liquor in less quantity than one gallon without a license. Some of the sales testified to were made by the clerks of the defendant. The court refused testimony offeredby the defendant as to what instructions he gave his clerks in relation to the sale of intoxicating liquor. This court held that the language of the statute, that whoever by himself, clerk, or servant shall sell intoxicating liquors shall be liable, and, the testimony being uncontradicted that the defendant kept intoxicating liquor for sale, he was responsible for the acts of selling by his clerks, no matter what might have been his instructions. In that case the evidence showed that the defendant was a practicing physician and a druggist. The sales of liquor made by him and his clerks were all upon written prescriptions of other practicing physicians, or upon representations by the purchaser to the defendant himself of sickness. Section 2 of the Dramshop Act provides that whoever, not having a license to keep a dramshop, shall, by himself or another, either as principal or clerk, directly or indirectly sell any intoxicating liquor in less quantity than one gallon, shall be subjected to the penalties of the act. Section 14 provides, substantially as section 23 of the Search and Seizure Act, that in prosecutions under the act it is not necessary to show the knowledge of the principal to convict for the acts of an agent or servant. The constitutionality of sections 2 and 14 of the Dramshop Act was not raised in Noecker v. People, supra.

In People v. Elliott, 272 Ill. 592, 112 N. E. 300, Ann. Cas. 1918B, 391, the plaintiffs in error were prosecuted for selling intoxicating liquor in anti-saloon territory, and it was contended that it was error to admit testimony of sales made by persons other than the two plaintiffs in error. This court held, however, that the plaintiffs in error had charge of the premises and managed the business and the other persons were acting as bartenders; that all were guilty as principals-citing Stevens v. People, 67 Ill. 587, and Johnson v. People, 83 Ill. 431.

In People v. Schmidt, 292 Ill. 127, 126 N. E. 570, plaintiff in error was convicted of selling intoxicating liquor in anti-saloon territory under section 11 of the act for the creation of anti-saloon territory, in force July 1, 1907 (Hurd's St. 1921, [310 Ill. 286]p. 1326), and of maintaining a nuisance under section 14 of that act. It was contended in this court that plaintiff in error could not be legally convicted for illegal sales made by his servants, unless he was conducting a dramshop or had knowledge of the sales or consented to them. The court charged the jury, in substance, that if they found from the evidence, beyond a reasonable doubt, that the plaintiff in error, either by himself or his clerk or servant, sold intoxicating liquor in anti-saloon territory they should find him guilty. An instruction was offered by the defendant to the effect that plaintiff in error could not be found guilty of illegal sales by his servant or clerk, unless the jury found from the evidence, beyond a reasonable doubt, that such sales were made with his knowledge, permission, and consent. This instruction was refused, and such refusal was held not to be error. The testimony showed that the accused kept intoxicating liquor for sale at his place of business in anti-saloon territory, where he could not be licensed for such a business. This court cited section 17 of the Local Option Act and section 14 of the Dramshop Act, which provides that it shall not be necessary to show knowledge of the principal to convict for acts of his agent or servant, and held that, ‘where it is shown that a defendant is illegally keeping intoxicating liquors for sale under either of said statutes, he is responsible for the acts of selling by his clerks or servants, no matter what may have been his instructions to them.’ The constitutionality of these or other sections of the Dramshop Act or the Local Option Act was not raised in that case.

Section 3 of the Search and Seizure Act (Smith-Hurd Rev. St. 1923, c. 43, § 53) provides, in part, as follows:

‘Whoever shall, within prohibition territory, by himself or another, either as principal, clerk or servant, in any manner manufacture, keep for sale, * * * sell, give away, or dispose of, or aid any person in procuring any intoxicating liquor in any quantity whatsoever, shall be punished.’

It will be seen that the provisions of the sectionrelating to principal and agent are, in substance, the same as those under the Dramshop and Local Option Acts. Plaintiff in error contends, however, that the cases above referred to, cited by the people, are not decisive of the constitutional question here raised, and this is true. It is also contended that those cases are distinguishable from the case at bar, in that the Dramshop and Local Option Acts purport to regulate the liquor business, while the Search and...