State v. Cummings, 6216

• Citation: 1957 NMSC 105,63 N.M. 337,319 P.2d 946
• Decision Date: 26 December 1957
• Docket Number: No. 6216,6216
• Parties: STATE of New Mexico, Appellee, v. Hazel CUMMINGS, Appellant.
• Court: New Mexico Supreme Court

Page 946

319 P.2d 946

63 N.M. 337

STATE of New Mexico, Appellee, v. Hazel CUMMINGS, Appellant.

No. 6216.

Supreme Court of New Mexico.

Dec. 26, 1957.

Hartley & Buzzard, Clovis, for appellant.

Fred M. Standley, Atty. Gen., Hilton A. Dickson, Jr., and Fred M. Calkins, Jr., Asst. Attys. Gen., for appellee.

BRAND, District Judge.

In the City of Clovis, one June day in 1956, a fourteen year old boy was sent by his foster mother to the home of the defendant, about a block away, to pick up a package for her. As he was leaving defendant's premises carrying a sack, he was seen by a cruising policeman, who stopped him and discovered that the sack contained two quart bottles of beer. After taking the boy to the police station, the officer returned to the defendant's apartment and a search revealed another ten quarts and nine cans of beer in her icebox. Whereupon, she was arrested and later an information was filed charging that she delivered alcoholic liquor, to wit, beer, to Jerry Wade Stephenson, a minor, contrary to the provisions of Sec. 46-10-12, N.M.S.A., 1953.

At the trial it was stipulated that on the delivery of the beer to the minor, he disclosed to defendant that he was obtaining it for an adult person. The boy testified that the package was not given to him by the defendant but by a man known as 'Rip', who was told by the defendant to hand him the package after he went into the house and informed defendant that he came to get the package. The State, over defendant's objection, was permitted to put in evidence Exhibit 2, being the quantity of beer found in the icebox by the officer, the two quarts taken from the boy having been admitted without objection. The jury returned a verdict of 'Guilty' and after sentence this appeal followed.

The portion of the statute with which we are concerned is as follows:

'Sec. 46-10-12. (a) It shall be a violation of this act for any club, retailer, dispenser, bartender, waiter or servant or employee of any club, retailer or dispenser, or for any taxi driver, hotel employee or any other person, except the parent or guardian or spouse of any minor, or adult person into whose custody any court has committed such minor for the time, outside of the actual, visible personal presence of such minor's parent, guardian, spouse or the adult person into whose custody any court has committed such minor for the time, to do any of the following acts:

'(1) To sell, serve or given any alcoholic liquor to a minor.

'(2) To buy alcoholic liquor for, or to procure the sale or service of alcoholic liquor to, a minor.

'(3) To delivery alcoholic liquor to a minor.

'(4) To aid or assist a minor to buy, procure or be served with alcoholic liquor.'

The first point for reversal argued is that the statute is designed to punish the act of delivery of liquor to a minor for his personal consumption, and does not apply where it is known that the liquor is intended for use by an adult, the minor being only the means of re-delivery to the adult. It will be seen, however, that the statute prohibits the delivery of liquor to a minor with but one exception--where the delivery is made in the actual, visible, and personal presence of a parent, guardian or other such adult person. Our statute goes farther than many similar Acts which only forbid the sale, serving or aiding a minor to buy, procure or be served with alcoholic liquor. Under such other statutes it is generally held, under circumstances comparable to the present case, that no offense would have been committed because the 'sale' was to the adult and the minor was known to be acting as an agent or the means whereby the liquor was delivered to the adult. The cases cited by defendant are not in point for this reason, all of them being under Acts intended to prevent sales or gifts of liquor to minors for their own consumption or use. In People v. Garrett, 68 Mich. 487, 36 N.W. 234, however, the Court stated:

'A statute which forbids the sale, giving or furnishing liquor to a minor is violated although the liquor delivered to the minor be intended for the use of an adult, the infant being only an agent is making the purchase.'

The Court observed that there is an inherent danger in delivering liquor to children which the law sought to prevent, and said:

'The defendant must have known that the boy might taste or drink of the beer before he got across the street if he so desired. It must be held that the legislature intended to prevent the delivering of liquor to children; that they should 'touch not, taste not, handle not.' It is not an uncommon thing in cities for parents and others to send children of tender years into dramshops after liquor. It makes no difference in my opinion, under the law, whether the liquor thus procured is to be used by the adults or the children. It is within the statute which prohibits the sale, the giving, or furnishing of liquor to minors. Any other holding must subject children to the temptations that surround and abound in the saloons without remedy.'

We agree with this theory and feel that our law clearly forbids any delivery of intoxicants to a minor unaccompanied by his parents, or person 'in loco parentis'.

It is next argued that the statute is restricted to offenses committed by liquor dealers, and is inapplicable unless the offender is the holder of a license to retail or dispense liquors, and further, that the statute is restricted in its application to liquor dealers classified as clubs, retailers, dispensers, and their agents and employees. Clovis and Curry County had not legalized the sale of liquor, was 'dry' territory, and the defendant had no license to sell liquor. Thus the question posed is whether what would be a crime if committed by a licensed liquor dealer, is not one if done by an unlicensed person.

The law, after enumerating the classes of liquor...