Seele v. State

• Citation: 122 N.W. 686,85 Neb. 109
• Decision Date: 25 September 1909
• Docket Number: 16,130
• Parties: HENRY SEELE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

122 N.W. 686

85 Neb. 109

HENRY SEELE v. STATE OF NEBRASKA

No. 16,130

Supreme Court of Nebraska

September 25, 1909

ERROR to the district court for Johnson county: LEANDER M PEMBERTON, JUDGE. Affirmed.

AFFIRMED.

S. P Davidson, for plaintiff in error.

William T. Thompson, Attorney General, and George W. Ayres, contra.

ROSE J. FAWCETT, J., not sitting.

OPINION

ROSE, J.

For the offense of selling intoxicating liquors to Henry Southard, a minor, defendant Henry Seele, a licensed saloon-keeper at Sterling, was fined $ 25 and costs, and brought the case to this court as plaintiff in error. Complaint is made of the sufficiency of the evidence to sustain the conviction, but a careful examination of the record shows that the jury in that particular were justified in finding defendant guilty.

1. A new trial is demanded on the ground that the court below erred in giving the following instruction: "The court instructs the jury that in the sale of intoxicating liquors to minors the owner or keeper of the saloon is responsible for the acts of his servants and employees; and a sale by a servant or employee of a saloon-keeper is in law a sale by the saloon-keeper himself." The doctrine stated does not appear to be in harmony with what was said by this court in an opinion by Chief Justice SULLIVAN in Moore v. State, 64 Neb. 557, 90 N.W. 553, where the following language is found: "It was conclusively proved that the defendant was a licensed vender of intoxicating drinks, doing business in the village of Anselmo, and that the illegal sales charged in the information were made in his saloon by his bartender. The evidence given on behalf of the defendant shows the sales were made without his knowledge, in violation of express instructions, and during his absence from the village. Do these facts acquit the defendant of criminal responsibility? This is the decisive question in the case, and it is the only question counsel have discussed. The statute does not assume to make masters liable for the conduct of their servants, but only for their own conduct." In In re Berger, 84 Neb. 128, 120 N.W. 960, this rule was adopted: "Where a barkeeper sells intoxicating liquors to a minor or to an habitual drunkard, the proprietor of the place will be held responsible for such sales, in the absence of evidence that they were made in violation of his orders." In Pulver v. State, 83 Neb. 446, 119 N.W. 780, the second paragraph of the syllabus is as follows: "Where a licensed saloon-keeper is prosecuted for the violation of a city ordinance forbidding him to keep his place of business open after 11 o'clock P. M., and such act is shown to have been committed by an agent in charge of such business, it is unnecessary to show any guilty intent on the part of the owner, such prosecution being in the nature of a civil action to recover a penalty." In Williams v. Phillips, 83 Neb. 105, 118 N.W. 1098, this court held: "Where on the hearing of a remonstrance against the granting of a liquor license it is satisfactorily proved that the applicant has within a year sold or given to a minor malt or spirituous liquors, he is not entitled to a license, and his application should be denied." In the same case the court said: "Where intoxicating liquors are unlawfully sold by the agent of a saloon-keeper, the principal as well as the agent may be prosecuted. Martin v. State, 30 Neb. 507, 46 N.W. 621."

Was the instruction quoted from the record prejudicial to defendant? He and a number of his bartenders testified that no sale to Southard had been made, as charged in the information or as stated in the proofs on behalf of the state. According to Southard, the first sale was made at defendant's saloon July 4, 1908. The name of the person who made it was not disclosed by the state's proofs. Defendant testified he went to the saloon between 5 and 6 o'clock in the morning of July 4, 1908, remained until 11 o'clock at night, and was behind the bar all day, having eaten his meals there. He told the jury he paid particular attention to minors that day, and did not allow them to come into the saloon. In answer to one question he replied: "I simply stayed distinctly on that minor business, so there were no minors allowed to come in." The fair import of his proofs is that he was in the saloon all day in presence of his bartenders and other servants, where he assumed personal responsibility for keeping minors out, and where each employee was subject to personal direction. There is no proof of the violation of any order of defendant, or that he was unable to keep Southard out or to prevent sales to him. Southard testified he also bought intoxicating liquors at defendant's saloon July 12, 1908, and October 1, 1908. He said, however, that on both occasions he bought the liquor from defendant personally. Except on the three dates named there was no evidence of any sale to Southard. Under the circumstances disclosed, the giving of the instruction that a saloon-keeper is responsible for the acts of his servants was not a prejudicial error.

2. Defendant insists the judgment below should be reversed for error on the part of the trial court in giving the following instruction: "If you find from the evidence beyond a reasonable doubt that a sale of intoxicating liquor was made by the defendant to Henry Southard, minor, as alleged in the complaint, then it is not necessary for the state to prove the intent or motive of the defendant in making such sale neither is it necessary for the state to prove that such sale was made to the minor knowingly. A liquor dealer is bound...