Simpson v. State
| Decision Date | 29 June 1918 |
| Docket Number | A-2979. |
| Citation | 173 P. 529,14 Okla.Crim. 484,1918 OK CR 57 |
| Parties | SIMPSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the attempt is made to convict a person and to hold him criminally responsible for the acts of his employé, it must be clearly shown that such act was reasonably within the scope of the agent's employment, or was an act done within the course of the principal's business. One employed to do the ordinary work in and around a feed and wagon yard is not ordinarily employed, nor is it within the scope of the employer's business, to sell whisky in such yard, and the employer of such person would not be criminally responsible for the acts of such employé in selling whisky in said yard, unless he was then engaged in such unlawful business at that place, or had hired such employé to sell whisky in addition to his general duties as helper in the feed and wagon yard.
Appeal from County Court, Ellis County; S. A. Miller, Judge.
Jim Simpson was convicted of selling intoxicating liquor, and assessed a fine of $50 and 30 days in prison, and he appeals. Reversed.
C. B Leedy, of Arnett, for plaintiff in error.
S. P Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
Jim Simpson was convicted in the county court of Ellis county for selling a quart of diluted alcohol to one James Bedey, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.
The conviction was based largely on the testimony of Albert Rich who swore that he was an employé of Simpson's in his feed and wagon yard in the town of Arnett; that he was 18 years old, and was employed just as a helper around the feed yard. His testimony was to the effect that on the 14th day of December, 1916, Jim Bedey came over there and wanted to buy some whisky, and Simpson told him that he had a little alcohol, and Bedey said he would like to have a drink, and then Simpson told Rich to go and get some, and Rich hunted up the alcohol out in a camp house and mixed up a quart and brought it in to where Simpson and Bedey were, and that Bedey gave Simpson a $5 bill and Simpson returned $3 in change, charging $2 for the alcohol. Rich was corroborated by his brother-in-law, S. J. Unziger.
Bedey testified that he got a quart of alcohol there on that occasion, but that he bought it from Rich, and, while Simpson was present in the office at the time, he was drunk, and did not say anything to Rich about getting alcohol; that Rich got the alcohol and delivered it to Bedey, and was paid for it without any express direction from Simpson so to do.
There was evidence to show that Simpson and some other parties had received a shipment consisting of one gallon of whisky and two gallons of alcohol at the town of Gage in that county a day or two before this alleged sale, but the witnesses testified that the part of this shipment that belonged to Simpson was one gallon of whisky, and that a gallon of alcohol belonged, respectively, to C. G. Cooley and one Mercer, and that they each took their parts to their homes.
According to the testimony of the state's witnesses, the defendant, Simpson would be guilty on the ground that he owned the alcohol that was sold by Rich, and had ordered and directed Rich to get it and make the sale, all of which was done in Simpson's presence and with his knowledge and consent. On the other hand, it is the contention of the defendant that if any sale of alcohol was made by Rich, it was at a time when he was drunk, and did not know about it, was without his knowledge of consent, and that he at no time had any interest in any alcohol, if any such liquor was concealed about his premises; that if Rich made such a sale, he did it entirely upon his own responsibility.
In instructing the jury on the question of Simpson's responsibility for Rich's acts, the court gave the following instruction:
"You are further...
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