People v. Rice

• Decision Date: 28 December 1894
• Citation: 61 N.W. 540,103 Mich. 350
• Court: Michigan Supreme Court
• Parties: PEOPLE v. RICE ET AL.

61 N.W. 540

103 Mich. 350

PEOPLE v. RICE ET AL.

Supreme Court of Michigan

December 28, 1894

Error to circuit court, Hillsdale county; Victor H. Lane, Judge.

Joseph Rice and William Berry were convicted of violating the local option law, and bring error. Reversed.

C. A. Shepard (T. E. Dibell and Wm. C. Chadwick of counsel), for appellants.

A. H Ellis, Atty. Gen., and Guy M. Chester, Pros. Atty., for the People.

McGRATH C.J.

Respondents were charged with the violation of the local option law, and were convicted. It is insisted that the information alleged two distinct offenses, viz. that of keeping a place where liquors were sold, and that of selling on a specified day. No objection was raised until the case was about to be submitted to the jury, when the people were required to elect, and did elect. The objection is therefore without force.

One Alley testified that he went into defendants' place with one Adams, and "I drank what I called 'lager beer.' *** What I drank I thought was beer. *** I drank the same as I did the first time,-lager beer. I thought it was intoxicating." One Adams testified: "I think I drank three glasses. It was beer,-'lager beer,' I should call it. It was intoxicating, stimulating. One Spaulding, who was invited by Alley to go with them testified: "I am a miller by trade. I was engaged in the saloon business for six months at Freemont, Ind., and sold lager beer under a license law there. I called for beer. Mr. Berry said he had no beer, nothing stronger than hop pop. I told him we would take some of that. He poured it out, and we drank it, Mr. Alley and I together. It was poured out of the same bottle. What I drank was hop pop. I have drank lager beer. I couldn't swear whether hop pop is intoxicating or not. It never intoxicated me. I felt no effect of what I drank that day, and I don't think I ever drank hop pop to feel the effect of it. What I drank there that day was not lager beer. I know what lager beer is." One Shepard testified that he was present when Alley and Adams were in the place; that he saw them drink; and that what they drank was not lager beer. The respondents both testified that they kept no lager beer for sale at the time charged; that they did not sell or furnish to either Alley or Adams, at the time mentioned, any lager beer; that hop pop did not taste like lager beer; that they had tested hop pop, and it was not intoxicating. Under this testimony, we think the respondents were entitled to the instruction requested, that, "in order to convict the defendants in this case, you must believe from the evidence introduced, beyond a reasonable doubt, that they sold on the 11th day of October, 1892, lager beer, as charged in the information; and, if you believe they only sold hop pop, then you should acquit them." It would have been entirely proper, however, for the circuit judge to have added to the instruction a caution that, if what was sold was in fact lager beer, the responsibility for the sale could not be avoided by giving it the name of hop pop.

On a trial for selling intoxicating liquors in violation of law, it is necessary to show by evidence that the liquor sold was intoxicating. There are certain kinds of liquors in regard to which courts will take judicial notice that they are intoxicating, but hop pop is not one of them, nor does the statute declare that hop pop shall be deemed intoxicating. Neither Alley nor Adams was shown to have been an expert, nor did it appear that either had had any personal experience or observation such as would enable him to form a correct opinion. Neither was shown to have been affected by the indulgence. Black, Intox. Liq. 521.

Adams testified that he was a detective, and had been employed to ferret out violations of the local option law and secure convictions, had made a number of complaints, and had been sworn as a witness in a number of like cases. The defense sought to show upon cross-examination that Alley was also employed for the same purpose; that the meetings between Alley and Adams were not accidental; that they had been together at various places; that both had testified in other cases; and that Alley had received pay for taking Adams to different localities in the county. We think this testimony was improperly excluded. The respondents had the right, upon cross-examination, to show that these witnesses were employed, and were acting under pay, as affecting their credibility. People v. Murphy, 93 Mich. 45, 52 N.W. 1042. The respondents were entitled to their ninth request, which was as follows: "In arriving at your verdict, you should take into consideration the fact that the witness Adams is a hired witness, and the fact that he is such hired witness should be considered by you in determining the credit that should be given his evidence."

It is urged that, inasmuch as Berry was an employ� simply, he was not guilty of the offense of keeping the place. It seems to me that there is much force in this contention. The offense is purely statutory. The statute makes it unlawful for any person to sell, etc., or to keep a saloon or place where, etc. Many of the statutes make not only the principal, but all who aid or assist, liable. State v. Stucker, 33 Iowa, 395; State v. Sullivan, 83 Me. 417, 22 A. 381; Tardiff v. State, 23 Tex. 169. Our own statute regarding the sale of intoxicating liquors, in express terms, makes all who aid and assist liable as principals, but the local option law contains no such provision. Mr. Bishop says that, if the terms of the statute distinctly limit the punishment to persons who participate in the act only in a certain way, they furnish the rule for the court. If the expression is general, then, if the offense is of minor turpitude, and especially if the thing is only malum prohibitum, the courts, by construction, will limit its operation to those persons who are more particularly within the express words of the enactment. 1 Bish. Cr. Law, 657. In Wakeman v. Chambers, 69 Iowa, 169, 28 N.W. 498, the question arose as to the liability of the purchaser, and the court say: "The sale of intoxicating liquor is lawful at common law, and it becomes unlawful simply because the statute so provides. Under the statute the sale or keeping with the intent to sell is a public offense, because the statute so declares. The statutory crime is bounded by the statute creating it, and the statute operates on, and has force and effect against, the persons therein named, and no others. As the prohibitory statute does not provide that the purchaser is guilty of any crime, it seems to us this fact practically ends the inquiry. If such had been the intent, it would certainly have been so provided in express terms." Mr. Black says (section 372): "A servant may be convicted of keeping and maintaining a saloon if, in the absence of the proprietor, he makes illegal sales of liquor, or otherwise assumes a temporary control of the premises." The Massachusetts cases seem to uphold the rule laid down, but they also hold that a conviction for keeping is not supported by proof of sales made in the presence of the proprietor. The language "keep a place" involves the control and management of the place; and it is going very far to hold that because a clerk is left temporarily in charge, in the absence of the proprietor, he is chargeable as keeper of the place. In State v. Main, 31 Conn. 572, it is said that to keep a hotel implies more than to live in one. The controlling head of a hotel keeps it. So the controlling head of a house of ill fame keeps it. Persons having the general charge, control, management, and supervision have been held liable as for keeping. State v. Dow, 21 Vt. 484; Stevens v. People, 67 Ill. 587. But I find no cases except those in Massachusetts holding that the mere temporary charge of a servant constitutes him the keeper of the place. State v. McGuire, 64 N.H. 529, 15 A. 213, holds the servant liable, but puts it upon the ground that the act of keeping is a misdemeanor, and that all who aid and assist are liable as principals. I think, however, that those who aid and assist in the commission of a misdemeanor are liable as principals in that class of cases only where the offense is malum in se, or criminal in itself, and not merely malum prohibitum. The statue, it seems to me, aims to reach any person who manufactures, sells, gives away, or furnishes, and the person also who keeps the place where manufactured, sold, given away, or furnished. I do not think that the language "to keep a saloon or place" can be held to apply to a mere bartender who is under the immediate control of the master, although such master may be temporarily absent, at dinner perhaps. As between the two persons here charged, the proprietor should be deemed the one who keeps the place, under the statute. The conviction must therefore be set aside, and a new trial had as to the respondents.

In my opinion, respondent Berry should be discharged, but my brethren do not concur in that view.

MONTGOMERY J.

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