Siegel v. People of State

CourtSupreme Court of Illinois
Citation106 Ill. 89,1883 WL 10188
Decision Date29 March 1883

WRIT OF ERROR to the Appellate Court for the Third District;-- heard in that court on writ of error to the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Plaintiff in error was indicted and convicted of selling liquor to a minor. Upon the trial, James Cantner testified: “I will be twenty on the 10th of April next. Know defendant when I see him. Know his place of business. It is in Champaign county, Illinois. He is a saloon keeper. His place of business was there prior to October, 1880. I was there but once prior to October 9, 1880. I did not obtain anything there to drink. The next time I was in his place of business was on the 3d day of July last, 1880. Marion Roach and Charles Schlorff were with me. I don't remember whether the defendant was in the saloon or not. I obtained beer there. It was lager beer. It is termed malt beer. I drank twice. Me and Charles Schlorff and Marion Roach went in and sat down at a table, and we gave Roach the money, and we went up and he called for the drinks, and we got it. The beer was put on the counter. I was standing at the west end of the counter. Schlorff and Roach were on the east side of me. We were standing close together. Roach called for three glasses of beer. We drank it. I did not know the man behind the counter. The man behind the counter was in his shirt sleeves, and selling beer. I expect there were twenty people in the saloon. Marion Roach paid for the beer. When I was drinking, the bar-keeper was not very far from me. He was waiting on other persons. He set the glasses of beer out on the counter in a row. After we drank the beer we went to a table, sat down and talked awhile, and then went up and got three more glasses. We gave Roach the money. I think it was fifteen cents. He was ‘broke.’ We gave him fifteen cents each time. After we gave him the second fifteen cents we went up to the bar. He called for three glasses of beer. The bar-keeper gave them and we drank them as before.” Upon cross-examination he testified: “I suppose Roach was about twenty-two or twenty-three years old. I don't mean to say that the bar-keeper saw us give Roach the money. As far as I know he didn't know anything about that.” The plaintiff in error was a witness in his own behalf, and testified that he did not know Cantner before the finding of this indictment; that he never saw witness in his saloon, and that he had a bar-keeper at the time of the alleged commission of the offence.

This was all the evidence. And the court thereupon, at the instance of the People, instructed the jury as follows,--to which plaintiff in error, at the time, excepted:

“The court instructs the jury, that if they believe, from the evidence, beyond a reasonable doubt, that James Cantner, the witness, and Charles Schlorff and Marion Roach, went into the saloon of the defendant and obtained from the bar-keeper of the defendant, if he then and there had a bar-keeper, lager beer, and that it was malt liquor, and they drank the same in the presence of said bar-keeper, and if the proof shows that James Cantner was a minor, then you should find the defendant guilty on as many counts as the proof shows, beyond a reasonable doubt, such sales were made, and in such case it makes no difference whether the bar-keeper is paid for such malt liquor by the minor witness or by an adult in his presence, provided you believe, from the evidence, that at the time of the alleged sale the alleged liquor was handed out by defendant's bar-keeper, to be drank by the person who paid directly for it, if the proof shows it was paid for, and also to be drank by the alleged minor, James Cantner, and that the alleged liquor was then and there paid for.”

The following instruction, asked by the plaintiff in error, was refused by the court,--to which ruling plaintiff in error also excepted:

“The court instructs the jury, that in order to constitute a sale there must be an intention to sell, and to constitute a sale to the witness, Cantner, in this case, it is necessary that the defendant or his agent should intend to sell to him.”

Motion for new trial was made by plaintiff in error, and overruled by the court,--and to this, also, plaintiff in error excepted.

This case was taken by writ of error to the Appellate Court for the Third District, and that court, at its November term, 1882, affirmed the judgment of the circuit court. This writ of error is on the last named judgment.

Messrs. RUBENS & HIESTAND, for the plaintiff in error:

Section 6 of the Dram-shop act creates two distinct and different offences with reference to minors: First, it is made an offence to sell intoxicating liquor to a minor; and second, it is made an offence to give such liquor to a minor. These are distinct and separate offences, and proof of one will not sustain a charge of the other. Humpeler v. People, 92 Ill. 400.

A sale is a transfer of the absolute or general property in a thing for a price in money, and mutuality is a necessary element of every sale. (Benjamin on Sales, secs. 1, 38, 39, 50.) Therefore, a mistake as to the person with whom the contract is made will avoid the sale. A party has the right to select who he will contract with. Benjamin on Sales, sec. 58; Holt's Nisi Prius, 253; Boulton v. Jones, 2 H. & N. 564; Mudge v. Oliver, 1 Allen, 74; Higgons v. Burton, 26 L. J. Ex. 342.

In sales of intoxicating liquors the identity of the vendee is of the utmost importance. A sale to an adult who is sober and temperate is lawful by one having a license to sell, while to a minor, without the proper consent of the parent, etc., will subject the vendor to fine, and perhaps imprisonment.

The statute in question is highly penal, and should be strictly construed. A new trial ought to be granted if the evidence leaves a reasonable doubt of the guilt of the defendant. Stuart v. People, 73 Ill. 20; Otmer v. People, 76 Id. 149.

Mr. E. L. SWEET, also for the plaintiff in error:

An intent is necessary to constitute a sale, here, as in any criminal case,-- not an intent to sell to a person of a particular character, as, to a minor or drunkard, but an intent to sell to the individual who is alleged to have purchased. Criminal Code, div. 2, secs. 9, 10.

The instruction for the prosecution took an important question of fact from the jury,--whether the sale was in fact made to the minor,--and this was error. Kirby v. Watt, 19 Ill. 393; Hart v. Wing, 44 Id. 141.

Mr. W. W. MATHEWS, State's Attorney, for the People, argued that the sale to the adult who was accompanied by the minor was a sale to the minor, within the meaning of the Dram-shop act.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

No question arises here whether plaintiff in error is guilty of having given liquor to a minor,--the offence for which he was tried, and of which he was convicted, was selling liquor to a minor; and we have heretofore held a count for the one will not be sustained by proof of the other offence. Humpeler v. The People, 92 Ill. 400.

The circuit court, by its ruling in giving the instruction asked by the People, and in refusing that asked by plaintiff in error, in effect decided that if a minor give an adult money wherewith to buy beer for the two, and the adult accept it and therewith buy beer, which is drank by the two, the vendor of the beer is guilty of a sale to the minor, within the meaning of the 6th section of the Dram-shop act, (Rev. Stat. 1874, chap. 43,) notwithstanding he did not, at the time, know that the adult had been furnished with money by the minor, and had no reason to suppose he was acting as agent for the minor,-- in short, that the vendor made a contract he did not intend to make, and that he had no reason to suppose he was making. So much of that section of the statute as is material reads as follows: “Whoever, by himself or his agent or servant, shall sell or give intoxicating liquor to any minor, without the written order of his parent, guardian or family physician, * * * shall, for each offence, be fined,” etc. There is no definition of what shall be held to constitute a...

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