State v. Cullins

• Decision Date: 10 March 1894
• Parties: STATE v. CULLINS.
• Court: Kansas Supreme Court

36 P. 56

53 Kan. 100

STATE v. CULLINS.

Supreme Court of Kansas

March 10, 1894

Syllabus

The purchaser of intoxicating liquor, which is sold in violation of law, is not a participant with the seller, and therefore is not guilty as the principal offender.

Appeal from district court, Marion county; Lucien Earle, Judge.

A. D Cullins was convicted of selling intoxicating liquors unlawfully, and appeals. Reversed.

The other facts fully appear in the following statement by HORTON, C. J.:

On the 12th day of July, 1892, an information was filed in the district court of Marion county against A. D. Cullins, charging him with selling intoxicating liquor without first taking out and having a permit as required by law. The information contained five counts. Upon the trial, William Dannenfelser testified as follows:

“Q. How much [whisky] did you get?

A. Well, I got a fourth of a pint. Four of us got a pint.

Q. Who were the four of you?

A. Why, there was me, and I think George Ray, and Ed. Winters was one, and I think he was the other.

Q. Who was the other?

A. Cullins.

Q. Did you pay anything for it?

A. I paid 25 cents for my share, and I think the others paid theirs.

Q. To whom did you pay it?

A. Cullins.

Q. What did you call for?

A. We didn’t call for anything in particular. Cullins spoke up, and said, ‘Let’s get a pint of whisky,’ and we chipped in and got a pint of whisky.

Q. To whom was that money given?

A. Cullins.

Q. You say that Cullins went and got this whisky?

A. Yes, sir.

Q. How long was he gone?

A. Well, I suppose, something like five minutes.

Q. Did you inquire where he went?

A. No, Sir.” The defendant, A. D. Cullins, testified as follows:

“Q. You heard Mr. Dannenfelser’s testimony, didn’t you?

A. Yes, sir.

Q. You did go and get some whisky for him and yourself and some other fellows, didn’t you?

A. Just as much for myself as for them.

Q. Well, did you get that at one of the joints, too?

A. I got in a joint, sir.

Q. Didn’t get it at a drug store?

A. No, sir.

Q. You can tell what joint you got it at?

A. I went to Wolf’s, on the John Hess corner.

Q. Is that on the east side of Main street, right next to the depot?

A. Yes, sir.”

The court instructed the jury, among other things, as follows: “If you believe from the evidence in the case, beyond a reasonable doubt, that the defendant, A. D. Cullins, under either of the counts in this case, did himself sell intoxicating liquor, within two years prior to the filing of the information in this case, without having a permit so to do, within the county of Marion, state of Kansas, or if you believe from the evidence in the case, beyond a reasonable doubt, that the defendant, A. D. Cullins, did aid or abet in the unlawful sale of intoxicating liquors,—that is, by going into a place where intoxicating liquors are sold unlawfully; places spoken of by the witnesses by the name of ‘joints,’ and known to the defendant as a place where intoxicating liquors are unlawfully sold,—and then and there buy intoxicating liquors with money furnished to him by parties for that purpose, he would be guilty of aiding and abetting in the unlawful sale, and he could be convicted, the same as the principal offender.” The jury returned a verdict finding the defendant guilty as charged in the second count. The motion for a new trial was overruled, and exceptions taken. The defendant, upon the verdict, was sentenced to pay a fine of $100 and costs, taxed at $99.25, and to be imprisoned in the jail of Marion county for a period of 30 days. He appeals.

Keller & Dean, for appellant.

John T. Little, Atty. Gen., and C. M. Clark, Co. Atty., for the State.

OPINION

HORTON, C. J., (after stating the facts.)

The question in this case is whether the purchaser of liquor which is sold in violation of law is guilty of unlawfully selling the same; that is, whether, by purchasing, he counsels, aids, or abets in the unlawful sale, and may be convicted in the same manner as if he were the principal. The precedents are against the conviction of the purchaser although he knows that the circumstances will render the sale of the liquor illegal. 1 Bish. Cr. Law, § 657; Black, Intox. Liq. § 381, and cases cited; State v. Rand, 51 N.H. 361; Com. v. Willard, 22 Pick. 476. In the last case, Chief Justice Shaw observed: "We know of no case where an act which, previously to the statute, was lawful or indifferent, is prohibited under a small, specific penalty, and where the soliciting or inducing another to do the act by which he may incur the penalty is held to be itself punishable. Such a case, perhaps, may arise, under peculiar circumstances, in which the principle of law, which in itself is a highly salutary one, will apply; but the court are all of opinion that it does not apply to the case of one who, by purchasing spirituous liquor of an unlicensed person, does, as far as that act extends, induce that other to sell in violation of the statue." In that case a distinction is drawn between cases which are usually considered mala in se, or criminal in themselves, in contradistinction to mala prohibita, or acts otherwise indifferent, than as they are restrained by positive law. State v. Bonner, 2 Head, 136, is cited in support of the instruction of the court. In that case it was held to be an offense for a white man to purchase liquor from a slave without a written permit from his master; but that case has been distinguished in Harney v. State, 8 Lea, 113, where it is held that a person who buys liquor sold contrary to the provisions of the statute is not equally as guilty as the seller. It is insisted,...