State v. Constatine

• Decision Date: 17 July 1906
• Parties: STATE v. CONSTATINE.
• Court: Washington Supreme Court

86 P. 384

43 Wash. 102

STATE v. CONSTATINE.

Supreme Court of Washington

July 17, 1906

Appeal from Superior Court, Chelan County; R. S. Steiner, Judge.

Harry Constatine was convicted of selling liquor to a minor, and appeals. Affirmed.

Diel & Thomas, for appellant.

Cross &amp Corbin, John D. Atkinson, and E. C. Macdonald, for respondent.

RUDKIN J.

The appellant was convicted of the crime of knowingly selling intoxicating liquors to a minor without the written consent of the parent or guardian, and from the judgment and sentence of the court, this appeal is prosecuted.

The material facts are as follows: For some time prior to the 26th day of August, 1905, the appellant was the owner of a saloon in the city of Wenatchee, and was regularly licensed to sell intoxicating liquors by the municipal authorities. On the above date one James Dunlap, a bartender and servant of the appellant, sold a glass of beer to Norman Turner, a minor of the age of seventeen years, without the written consent of the parent or guardian of such minor. At the time of this sale the appellant was absent from the city of Wenatchee, and had no notice or knowledge of the sale. The fact that the sale was made through an agent appeared on the face of the information, and upon this ground a demurrer was interposed. The demurrer was overruled, and upon the trial the appellant offered to prove that he had instructed his bartenders and servants not to sell liquor to minors nor allow them in the saloon. To this offer an objection was interposed and sustained. At the close of the state's case the appellant requested the court to instruct the jury to return a verdict of not guilty, for the reason that it appeared from the uncontradicted testimony that no sale had been made by the appellant, but the request was refused. At the close of all the testimony the appellant again requested the court to instruct the jury that they must find that the sale was made by the appellant before they could return a verdict of guilty, but this request was likewise refused. These several rulings gave rise to the principle assignments of error and may properly be considered together.

It is undoubtedly a general rule of law that there can be no crime without a criminal intent, and that one man is not criminally responsible for the acts of another, even though such other be his agent or servant, unless something more than the mere relation of master and servant is shown, but there are many exceptions to the rule. As said by the court in People v Roby (Mich.) 18 N.W. 365, speaking through Cooley, Chief Justice: 'I agree that, as a rule, there can be no crime without a criminal intent, but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence, and there are many other cases where mere neglect may be highly criminal. Many statutes, which are in the nature of police regulations as this is, impose criminal penalities irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.' In People v. Lundell, (Mich.) 99 N.W. 12, the same court says: 'The contention that the respondent is not responsible for the act of his barkeeper in keeping his saloon open, but that the barkeeper is the only offender, has been answered too often to leave it necessary to discuss the question at any length. The court has frequently held that this statute imposes upon the keeper of a bar or saloon the affirmative duty to see that it is closed during certain hours and on holidays, and that the neglect of this duty is an offense.' In Carrol v. State, 63 Md. 551, 3 A 29, the court said: 'When the agent, as in this case, is set to do the very thing which, and which only, the...