Southern Exp. Co. v. State

• Decision Date: 03 March 1907
• Docket Number: 160.
• Citation: 58 S.E. 67,1 Ga.App. 700
• Parties: SOUTHERN EXPRESS CO. v. STATE.
• Court: Georgia Court of Appeals

58 S.E. 67

1 Ga.App. 700

SOUTHERN EXPRESS CO. v. STATE.

No. 160.

Court of Appeals of Georgia

March 3, 1907

Syllabus by the Court.

The responsibility of corporations for violation of penal laws though developed by gradual evolution, is well-settled and necessary.

[Ed Note.-For cases in point, see Cent. Dig. vol. 12 Corporations, § 2138.]

A corporation can be guilty of the offense of furnishing liquors to a minor, if such liquors be delivered to a minor by the agent of the corporation in the course of its business, or if such agent knowingly permits such delivery by another.

Proof of sale to one minor will sustain a conviction under an indictment charging that the defendant sold and furnished to three. The word "furnish," as used in Pen. Code 1895, § 444, has the same meaning as the word "deliver."

[Ed Note.-For cases in point, see Cent. Dig vol. 29, Intoxicating Liquors, § 274.]

Where an indictment charges the accused with selling or furnishing three or more kinds of liquors, the evidence is sufficient to support a conviction if it shows the sale or furnishing of any one of the liquors charged. "The indictment may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction 'and,' where the statute has 'or,' and it will not be double, and it will be established at the trial by proof of any one of them." 1 Bish. New Cr. Proc. § 436.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 271.]

To assume in a criminal case that the testimony for the state is the truth, though such testimony be not contradicted by evidence for the defendant, and to charge the jury that such testimony is the truth and that there is no contention to the contrary, is violative of section 4334 of the Civil Code of 1895, and demands a new trial. The plea of not guilty, filed by the defendant, is a contention on his part as to every material and essential fact necessary to establish his guilt, and implies a denial of every such fact.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1754.]

A conviction of a corporation for violation of section 444 of the Penal Code of 1895 cannot be sustained, where the evidence fails to show that the delivery of the liquors was made by an agent of the company, unless it appears that such agent knowingly permitted such unlawful furnishing; and a verdict, unsupported by proof of either of these facts, is, for lack of evidence, contrary to law.

Error from Superior Court, Gordon County; Fite, Judge.

The Southern Express Company was convicted of furnishing liquor to a minor, and it brings error. Reversed.

F. G. Du Bignon, McDaniel, Alston & Black, and G. A. Coffee, for plaintiff in error.

Sam. P. Maddox, Sol. Gen., for the State.

RUSSELL J.

The Southern Express Company was presented for the offense of furnishing spirituous, malt, and intoxicating liquors to three certain minors, named in the presentment. The express company is a corporation under the laws of Georgia, and was presented as a corporation. Before arraignment the company demurred to the presentment, on the ground that the charge is set out in such a way as to word the same in the alternative, in that the charge is that the defendant did sell, give, and furnish to Wofford Cox, Cleveland Wofford, and Charlie Gresham, minors, spirituous, malt, and intoxicating liquors. It also demurred because the description of the liquor is not sufficiently definite to put the defendant on notice of the kind of liquor which the state expects to prove was given, sold, or furnished by the defendant. It also demurred upon the ground that the defendant, as a corporation, cannot be indicted under section 444 of the Penal Code of 1895, and, further because there was no statement in the presentment as to where the defendant was incorporated. This demurrer was overruled, and exceptions pendente lite were properly allowed, and are presented in the bill of exceptions.

The evidence developed the following state of facts: One of the three minors, in behalf of all of them, ordered some whisky from a liquor dealer in Chattanooga, Tenn. It came by express, consigned to Wofford Cox, one of the three. Cleve Wofford paid the express charges and Wofford Cox received it. The three minors were each about 18 years of age. These minors, after its delivery, took the whisky to a pine thicket, "opened it up," and drank it. Each of them testified that the fluid was corn whisky. This whisky was not ordered at or from the express office in Calhoun. It was ordered at Ballew's, in Calhoun, Ga. The whisky was delivered by a boy, whom the testimony showed to be from 12 to 15 years old, and who was referred to by the witnesses as "George Gardner's little boy." It was uncontradicted that he was not employed by the defendant. He was employed by the Western Union Telegraph Company, which had an office in the same place as the express company. The agent for the Western Union Telegraph Company was also agent for the Western & Atlantic Railroad Company and for the Southern Express Company. There is conflict in the evidence as to whether the agent, Mr. Parrott, was in the office at the time of the delivery. Some witnesses testified that they did not know whether he was present, and others, including Parrott himself, swore positively that he was not present; but the only witness who testified that Parrott, the agent of the express company, was present, also testified that he (Parrott), so far as the witness knew, had no knowledge of the delivery of the whisky. This witness (Cleveland Wofford) testified: "I seen Mr. Parrott in there then. I am sure about that. I don't think Mr. Parrott was up town then. At that time he was looking over some boxes and looking around for some express for somebody else. I don't know whether he [Parrott] was engaged with the express company's business at the time I was there or not. He was attending to some business around there in the office. I don't know what it was; looking around for some boxes, or something or another, hunting some express for somebody else, I think." It was further in evidence that the young boy who delivered the whisky was not employed by the express company and received no compensation from it; and the agent testified that he was not authorized by the express company to employ him or to delegate any authority to him. There was evidence that Cleveland Wofford, who paid the express charges, had scattering beard on his face. He could not recollect whether he was the one who asked for the whisky or not. There was no evidence showing that the company had knowledge of the contents of the jug, or knowledge of the fact that it contained intoxicating liquor.

Upon conviction the defendant made a motion for new trial, based on various exceptions to the charge of the court and refusals to charge as requested. The motion was overruled, and the writ of error presents for consideration the overruling of the demurrer, excepted to pendente lite, and the refusal of the new trial.

We think the demurrer was properly overruled. It is well settled that the offense defined in section 444 of the Penal Code of 1895, may be properly set out by an allegation of sale to more than one minor, and sustained by proof as to any one of them. Dukes v. State, 79 Ga. 795, 4 S.E. 876. The word "give" may be treated as synonymous with "deliver," which is the meaning of the word "furnish," in this section; and it may, therefore be regarded as surplusage. And it is well settled that a corporation is included in the word "person," used in the criminal statute. Pen. Code 1895, § 2. It is true that the doctrine of holding corporations responsible for violation of penal laws is one developed by gradual evolution; but it is none the less the law, and is of healthful necessity and utility. Mr. Thompson, in his work on Corporations (section 6285), uses the following language: "The rule that laws are to be construed with such strictness as to restrain the real purpose of the Legislature where they are penal is believed to have no just principle upon which to rest, as there is no reason why a corporation should be included in the word 'person' for the purpose of jurisdiction, and be excluded from it for the purpose of being exempted from liability to penal actions for the commission of wrongs for which the statute law makes individuals so liable. On the contrary, such an interpretation gives to an aggregate body of wrongdoers an immunity from punishment which individuals do not enjoy. The sound rule is that corporations are to be construed as persons, when the circumstances in which they are placed are identical with those of a natural person expressly included in a statute, and where the statute can be as aptly applied to them as to corporations." Wales v. Muscatine, 4 Iowa, 302; Stewart v. Waterloo Turn Verein, 71 Iowa 226, 32 N.W. 275, 60 Am.Rep. 786. In South Carolina R. Co. v. McDonald, 5 Ga. 531, it is held that corporations are embraced in the word "person." A corporation "is a person under the law-an artificial person, created by the Legislature. It has a name-a local habitation, too. It is not a citizen in...