People v. Longwell

• Decision Date: 05 June 1899
• Citation: 79 N.W. 484,120 Mich. 311
• Court: Michigan Supreme Court
• Parties: PEOPLE v. LONGWELL.

79 N.W. 484

120 Mich. 311

PEOPLE v. LONGWELL.

Supreme Court of Michigan

June 5, 1899

Exceptions from circuit court, Van Buren county; George M. Buck, Judge.

E. B Longwell was convicted of unlawfully selling liquor, and he brings exceptions. Affirmed.

Long J., dissenting.

Horace M. Oren, Atty. Gen., and James E. Chandler Pros. Atty., for the People.

A. Lynn Free and Alfred J. Mills, for defendant.

GRANT C.J.

The respondent, a druggist, was convicted of selling liquor contrary to Act No. 207, Pub. Acts 1889. His defense was that the sale was made by his clerk, contrary to his general instructions. Should this defense have been submitted to the jury? We think not. The statute provides that "any person who himself, or by his clerk, agent or employ� shall violate any of the provisions," etc. It is conceded, in statutory crimes of this character, that the legislature may do away with the intent as an ingredient of the offense, and make the act itself criminal, whether it is done by himself or by his clerk, agent, or employ�. Chief Justice Cooley, in People v. Roby, 52 Mich. 577, 18 N.W. 365, clearly draws the distinction between those cases where intent is the necessary ingredient of the crime and where it is not, and has cited numerous authorities. The first inquiry, then, is, what does the statute mean? It is not a case for interpretation. The language is unequivocal, and makes the druggist liable for any violation of the law by his clerk, agent, or employ�. It is pertinent to examine some prior decisions of this court which are relied upon. The first is Faulks v. People, 39 Mich. 200. That opinion does not cite the statute under which the conviction was had. An examination of the records of the case show that it was Act No. 193, Pub. Acts 1877. That act does not contain the words, "or by his clerk, agent or employ�." It is limited to the person actually making the sale. In People v. Parks, 49 Mich. 333, 13 N.W. 618, respondent was convicted under section 12 of Act No. 259 of the Public Acts of 1881, which reads as follows: "All persons engaged in the business of selling or keeping for sale any of the liquors mentioned in sections 1 and 2 of this act, whether as owner, or as clerk, agent or servant, shall be equally liable as the principal for any violation of any of the provisions of this act." By reference to section 2 of the same act it will appear that "the fact of selling, giving or furnishing any of said liquors to any minor or to any intoxicated person *** shall be a prima facie presumption of an intent on the part of the person so selling, giving or furnishing such liquor to violate the law." Two things are apparent under this act: (1) That it contains no language making the owner responsible criminally for the act of his clerk, agent, or servant, and (2) that, while the intent was an ingredient of the offense, that intent was to be presumed from the act of selling, etc., and cast the onus probandi upon the liquor seller to show the absence of intent. In People v. Metzger, 95 Mich. 121, 54 N.W. 639, the point was not involved. What was said, therefore, is dicta. An examination, however, of section 13, Act No. 313, Pub. Acts 1887, under which the respondent was convicted, will show that the language is substantially the same as the act of 1881, and makes the act itself prima facie evidence of the intent. Section 24 provides "that any person or principal shall be liable for the acts of his clerk, servant or employ� for any violations of the provisions of this act." Where an act contains provisions apparently in conflict, courts will construe them, if possible, so that both shall stand. It would undoubtedly, therefore, be properly held that section 24 did not take away the defense of want of intent, but left a respondent to show such intent on his part. It is manifest, therefore, that both the acts of 1881 and 1887 make an intentional participation an ingredient of the offense. They only shift the burden of proof. Black cites the statutes of several states containing provisions like the one under which respondent was convicted, and states: "It is held to be no defense to an indictment against the principal that the unlawful act was done without his knowledge or consent, or without his authority, or in his absence, or even that it was done in contravention of his express and bona fide orders." Black, Intox. Liq. � 370, and authorities there cited. Black closes the section with the following language: "The object of these statutory provisions, in effect, is to require the principal to see to it, at his peril, that no unlawful sales are made in his establishment. And, if it savors of severity to subject him to punishment for the acts of others while he had expressly forbidden it, it must be remembered that he can escape liability by selecting servants and agents who will keep within the law, and obey his orders, or by abandoning a business which exposes him to such hazards." The statute in unequivocal language makes the druggist responsible for the acts of his clerk in making these illegal sales. It is as easy for liquor dealers to employ clerks and agents who will carry out their instructions not to make prohibited sales as it is to employ those who will obey their instructions not to open their places of business contrary to law. The conviction is affirmed.

MONTGOMERY, HOOKER, and MOORE, JJ., concurred with GRANT, C.J.

LONG J. (dissenting).

Respondent was indicted by a grand jury in Van Buren county, charged with having, on the 3d day of December, 1897, as a druggist and registered pharmacist, sold and delivered to John Price, who was intoxicated at the time, eight ounces of alcohol, contrary to the provisions of the local option law in force in that county. The indictment charges that the sale was made by the respondent personally. On the trial the people introduced testimony which, it is conceded, established that the local option law was in force in that county at the time of the alleged sale, and that respondent was a druggist, and had filed his bond as such, at that time. The testimony also tended to show that the sale was made by a clerk of the respondent, and not by the respondent himself; and that Price was intoxicated at the time. Respondent introduced testimony which tended to show that he (respondent) had warned and instructed his clerks, including the one who had sold the alcohol to Price, not to sell to prohibited persons, during prohibited hours, or in violation of law, or otherwise than as a druggist legally might, and to obey strictly all the provisions of the law; and that he (respondent) was not present at the time when the sale was made to Price. At the close of the testimony, the court was asked to instruct the jury: "(1) If a clerk or agent, without the knowledge and against the instructions of his employer, sells intoxicating liquor to a person who is intoxicated at the time of the sale, the employer is not criminally responsible for the act; and although you should find from the evidence that the said John Price was intoxicated at the time of said sale, yet if you find that the respondent did not make the sale, but that it was made by the respondent's clerk or clerks without the knowledge and against the instructions of the respondent, then the respondent is not criminally liable, and you should acquit him. (2) If you are satisfied from the evidence that the respondent instructed his clerks to carefully observe the local option law, and particularly not to sell to a person intoxicated or under the influence of liquor, and that on the evening of December 31, 1897, said clerk or clerks sold liquor, viz. alcohol, to John Price, without the knowledge or consent of respondent, and against his express orders, then the respondent cannot be convicted." The court refused these requests, and directed the jury, substantially, that if they found that, notwithstanding the prohibition, the clerk made the sale to Price while he was intoxicated, and intoxicated to such an extent that the sale should not have been made, then the employer would be liable for the act of his clerk notwithstanding the prohibition. The jury found the respondent guilty, and the case comes into this court on exceptions before sentence.

Act No 207, Pub. Acts 1889, by section 16 (3 How. Ann. St. � 2283b5), provides that: "Any person who himself or by his clerk, agent or employ� shall violate any of the provisions of section one of this act shall for the first offense be guilty of a misdemeanor," etc. Section 1 provides: "It shall be unlawful for any person directly or indirectly, himself or by his clerk, agent or employ�, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous or intoxicating liquors *** in any county of this...