Russell v. State

• Decision Date: 14 June 1911
• Docket Number: 635
• Citation: 116 P. 451,19 Wyo. 272
• Parties: RUSSELL v. STATE
• Court: Wyoming Supreme Court

116 P. 451

19 Wyo. 272

RUSSELL v. STATE

No. 635

Supreme Court of Wyoming

June 14, 1911

ERROR to the District Court, Sheridan County, HON. RODERICK N MATSON, Judge.

The plaintiff in error, Walter Russell, was prosecuted and convicted of the offense of selling intoxicating liquors without a license, and brought error. The material facts are stated in the opinion.

Affirmed.

Enterline & LaFleiche, for plaintiff in error.

A fine of $ 600 for selling intoxicating liquors to three persons at practically the same time and place is excessive notwithstanding that the defendant is prosecuted for each sale upon a separate count. The failure of the information to describe the particular place of sale within the county named constitutes a defect for which the information should have been quashed. (Arrington v. Comm., 10 L. R. A. 242.) An information against an officer, agent, or employee of a corporation based upon a sale of intoxicating liquors by such party for the corporation should allege the corporate existence of the company, that the defendant was either an officer, agent or employee thereof, and that in such capacity he either made, or countenanced, or connived at the sale. The information in this case merely charges a violation of the statute by the defendant in his individual capacity, and he could not be properly convicted upon the showing of a sale made by him for the corporation. If this were not so, then it would seem impossible for the defendant to plead his conviction in bar of a prosecution against him as an officer agent or employee of the corporation. On the face of the record a sale made by the defendant as an employee of a corporation is certainly a different offense than a sale made by him personally. The record and the testimony shows that the prosecution knew of the corporate existence of the Dietz Club. It should therefore have pleaded the existence of that club, and that the defendant, as president of the club, did at the time and place as alleged, make, countenance and connive at the sale charged. The first of the section applies only to an individual violating the law in the first instance, and he is made responsible, even though he made the sale by an employee or agent. It is evident that the legislature did not intend to punish the agent or employee of an individual at all, but in the latter part of the section the intention appears to punish an officer, agent, or employee of a corporation when the unlawful sale is made in such capacity. If we are not correct in this contention, then the court committed prejudicial error in giving the 9th instruction, which was excepted to by the defendant, for the reason that if the state was not required to allege the corporate existence of the club and the defendant's official relation thereto, then it was wholly immaterial for what purpose the club was organized, or whether its principal business was dispensing liquors to members, or whether that was a mere incident to the purpose for which the club was created.

It was error to admit in rebuttal testimony introduced by the state over objection to show the character of the club and sales of liquor made by it. (1) By that testimony it was sought to establish the kind and character of the Dietz Club, and the purpose for which it was organized, with no proper averment in the information. (2) It sought to rebut a presumption created by the introduction in evidence of the certificate of incorporation of the club. How could the state be permitted to go into this matter of rebuttal if the articles of incorporation were irrelevant and immaterial? It was highly prejudicial to permit evidence showing sales of liquor at the club at other times and to other persons than those named in the information. As in other cases before the court we contend that the state should not be permitted to segregate one offense into several counts, for all of the sales together at or about the same time would constitute an engaging in the business of selling intoxicating liquors. The testimony offered in rebuttal, therefore, as well as in chief would have been competent and relevant only to show one offense. (Fields v. Terr., 1 Wyo. 78.) The state having elected to charge the defendant with four separate and distinct offenses, all occurring on the same day, its proof should have been limited to the particular sales specified in the information. (State v. Hughes, 45 P. 94.) The burden of proof at no time rested upon the defendant. (Trumble v. Terr., 3 Wyo. 280; State v Neild, 45 P. 623.) There was no proper instruction given whereby the jury was admonished not to consider the evidence that had been admitted of other sales than those specified in the information. It must therefore be presumed that the jury took such testimony into consideration. (Naul v. State, 12 So. 903; Ware v. State, 13 So. 936; State v. Marshall, 44 P. 49.) In the cases cited a verdict of conviction was set aside and the judgment reversed for the reason that evidence as to other sales than those charged was admitted.

D. A. Preston, Attorney General, and Charles A. Kutcher, for the state.

It is urged by counsel for plaintiff in error in this case, as it was in the Vines case, that all of the sales set forth in the information constitute but one continuous offense, and that it was improper to segregate the same into several counts; and it is urged that the fine of $ 600 is excessive and a cruel and unusual punishment within the meaning of the constitution. It is a sufficient answer to these arguments to say that no other statute can be found which fixes so low a punishment as that named in our statute. The penalty usually prescribed for this offense is a heavy fine coupled with imprisonment for each and every offense. In view of statutes of other states it is manifest that our statute is exceedingly lenient in the matter of the penalty. So that if the penalty prescribed by the statute throws any light upon the legislative intent as to whether each sale constitutes an offense or several sales but one continuous offense, the amount of the penalty prescribed would seem to indicate that each sale was intended to be deemed a separate offense. The point that the information should have alleged the corporate existence of the club and the official capacity in which the defendant made the sales is not well taken. It is not the law that the defendant could not have shown that the Dietz Club had a license authorizing it to sell the liquors. It is well settled that where the principal has a license, it is ample protection to his agents and employees engaged in the business. (Bishop on Stat. Crimes, Secs. 1024, 1004; 23 Cyc. 248, 205; Black on Intox. Liq., Secs. 372, 507.) It is argued that an agent or employee is not amenable to the law forbidding the sale of liquor without a license. The statute cannot be so construed. It forbids the sale by any person in any capacity without a license. In reference to a corporation, it is manifest that the legislature intended to cover by the provision found in the section every shift and device that might be resorted to for the purpose of evading the law. By providing that in case of a violation by a corporation, every officer, agent or employee making the sale shall be deemed a person making the sale means that he may be indicted as principal without regard to the corporation in whose behalf the sale was made. (Bishop on Stat. Crimes, Sec. 1024; People v. Soule (Mich.), 41 N.W. 908; People v. DeGroot (Mich.), 69 N.W. 248; State v. Christian (Ore.), 23 P. 963; Sothman v. State (Neb.), 92 N.W. 303.) The rule is uniform and well settled that it is incumbent upon a defendant to produce a license where the sale is made on his own behalf, or to produce the license of his principal where he makes the sale as agent or employee of some other person or corporation. The statute has in no manner changed the common law rule with reference to accessories and aiders and abettors of misdemeanors.

In the case at bar there is no evidence whatever that the Dietz Club owned the liquor in question, or that the defendant did, in fact, act as an officer or agent of the club in making the sales of the liquor charged. For ought that the evidence shows, the defendant might have been an officer or agent of the club for certain purposes, but not to sell intoxicating liquors. The defendant may have owned the liquors himself, so far as anything is disclosed by the evidence in that respect. It will be noted that after the state proved the particular sales alleged in the information and rested its case, the defendant then introduced in evidence the articles of incorporation of the Dietz Club, and a card issued by it to the witness Benefiel, and offered no other proof. What were these articles offered in evidence for? Did they constitute a sufficient defense as to the charges set forth in the information, or were they introduced for the purpose of showing that the sales in question were made by the defendant while acting as an officer or agent of an incorporated club for the purpose of raising the issue that the sales were made by a club organized for a purpose and in such a manner as would permit it to sell liquors without a license? That the latter purpose was the object of the evidence is quite apparent from an examination of the articles of incorporation. If the state was not required, in the first instance, to show that the sale was not made to one of its...