People v. Roby
| Citation | 52 Mich. 577,18 N.W. 365 |
| Court | Supreme Court of Michigan |
| Decision Date | 06 February 1884 |
| Parties | PEOPLE v. ROBY. |
The penalties of the statute regarding the sale of liquor on Sunday are denounced against those whose saloons are not kept closed on that day, and no other act is necessary to complete the offense. People v. Parks, 49 Mich. 333, [S.C. 13 N.W. 618, distinguished.
A crime must usually contain a criminal intent; but this rule is not universal. In this case the offense consists in the negative act of not keeping the saloon closed.
Exceptions from Allegan.
J.J. Van Riper, for the People.
The respondent, who is keeper of a hotel in the village of Plainwell, in which there is a bar for the sale of spirituous and malt liquors, was prosecuted and convicted for not keeping his bar closed on Sunday, May 6, 1883. The evidence was that on the morning of that day the clerk of the hotel was in the bar-room and had a servant with him scrubbing it out when a person came in from the street. He appeared to be known to the clerk, who told him he did not want him there Sundays. The man said he wanted some whisky. The clerk told him he must get his whisky Saturday nights. After some more words between them, the clerk told him if he was going to get the whisky, to get it and get out as soon as he could. He got the whisky, handed pay for it to the servant, and went off. The respondent was not at the time present. The clerk testifies that he was somewhere about the house but he thought he was not up yet; the servant says he was about there shortly afterwards. There was no evidence in the case to show that respondent assented to the opening of the bar on that day, or expected or desired that it should be opened; neither was there any evidence to the contrary. He was not a witness on his own behalf.
The case comes to this court on writ of error, and the only question of importance is, whether there was any evidence to be submitted to the jury. The statute under which the conviction was had provides that "all saloons restaurants, bars in taverns or elsewhere, and all other places where any of the liquors," etc., "may be sold or kept for sale, either at wholesale or retail, shall be closed on the first day of the week, commonly called Sunday," etc. Howell's St. � 2274; Pub.Acts, 1881 p. 350.
It will be observed that the requirement that the saloons and other places mentioned shall be closed, is positive. The next section of the statute provides that any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor, and shall be punished as therein prescribed. In terms, then, the penalties of the statute are denounced against the person whose saloon or other place for the sale of intoxicating drinks is not kept closed, and no other fact is necessary to complete the offense. It is contended, nevertheless, that to constitute an offense under the section referred to, there must be some evidence tending to show an intent on the part of the respondent to violate it, and People v. Parks, 49 Mich. 333, [S.C. 13 N.W 618,] which was a prosecution under another section of the same statute, is cited as authority. It should be said of that case that the facts are not fully given in the report, and that there was positive evidence in the case to negative the intent in the respondent that the criminal act should be committed. But the case is plainly distinguishable from this. The section under which Parks was prosecuted makes not only the proprietor, but his clerk, agents, etc., individually liable for the conduct prohibited, and imposes upon them severally the duty to abstain from it. The action under which Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon, etc., closed.
I agree that as a rule there can be no crime without a criminal intent, but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence, and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible. Thus, in Massachusetts a person may be convicted of the crime of selling intoxicating liquor as a beverage, though he did not know it to be intoxicating, ( Com. v. Boynton, 2 Allen, 160;) and of the offense of selling adulterated milk, though he was ignorant of its being adulterated. Com. v. Farren, 9 Allen, 489; Com. v. Holbrook, 10 Allen, 200; Com. v. Waite, 11 Allen, 264; Com. v. Smith, 103 Mass. 444. See State v. Smith, 10 R.I. 258. In Missouri a magistrate may be liable to the penalty for performing the marriage ceremony for minors without consent of parents or guardians, though he may suppose them to be of the proper age. Beckham v. Nacke, 56 Mo. 546. Where the killing and sale of a calf under a specified age is prohibited, there may be a conviction though the party was ignorant of the animal's age. Com. v. Raymond, 97 Mass. 567. See The King v. Dixon, 3 Maule & S. 11. In State v. Steam. Co. 13 Md. 181, a common carrier was held liable to a statutory penalty for transporting a slave in its steamboat, though the persons in charge of its business had no knowledge of the fact. A case determined on the same principle is Queen v. Bishop, 5 Q.B.Div. 229. If one's business is the sale of liquors, a sale made by his agent in violation of law is prima facie by his authority. Com. v. Nichols. 10 Metc.
259. And in Illinois the principal is held liable, though the sale by his agent was in violation of instructions. Noeck v People, 91 Ill. 494. In Connecticut it has been held no defense in a prosecution for selling intoxicating liquor to a common drunkard that the seller did not know him to be such. Barnes v. State, 19 Conn. 398. It was held in Faulks v. People, 39 Mich. 200, under a former statute, that one should not be convicted of the offense of selling liquors to a minor who had reason to believe, and did believe, he was of age; but I doubt if we ought so...
To continue reading
Request your trial